District Court grants permanent care order for child due to mother's untreated addiction and domestic violence.

[2013] IEDC 6

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

SB

RESPONDENT

CHILD CARE ACT, 1991— SECTION 18(1)

IN THE MATTER OF A CHILD

5 March 2013

1. This is an application for a Care Order under section 18(1) of the Child Care Act, 1991 (herein after referred to as ‘the 1991 Act’) in

respect of the Child who was born in August 2011 at 27 weeks gestation with a very low birth weight.

2. The Child’s mother is legally represented in the proceedings by solicitor and counsel.

3. The Child’s father is not legally represented by his own choice in the proceedings and I am satisfied that the notice of application

was duly served on the father.

4. The separate interests of the child are represented in the proceedings by the Guardian ad Litem (“GAL”) appointed by the Court on

23 November 2011.

5. The GAL indicated to the Court his support for a Care Order in respect of the Child and recommended such Order for the full

duration until the child reaches the age of 18 years. The GAL approves the HSE’s Care Plan in respect of the Child provided to Court.

6. The HSE brought this application on the basis that the Child’s health, development, and welfare is likely to be avoidably impaired or

neglected if the child is returned at this time to the joint care of the parents or to the care of either of them due to the parents’

chaotic lifestyle, the existence of domestic violence between the parents, the volatile nature of the parents’ personal relationship,

the mutual lack of capacity to parent the child, and the mother’s alcohol misuse and histrionic personality disorder.

7. I am satisfied that the [District given] has jurisdiction to hear this application.

History

8. The Mother has three older children in another jurisdiction who were all placed in the care of their respective grandparents under a

Supervision Requirement Order by the Courts in that jurisdiction and the children were also placed on the Child Protection Register in

this jurisdiction.

9. The HSE became involved in 2009 when the mother left her country of habitual residence with her youngest in contravention of the

Court Order made in that jurisdiction. The child came into the Care of the HSE by way of an Emergency Care Order on 16 July 2009

until, by Order of Finlay Geoghegan J in the High Court, this child was returned to the care of Social Services in the country of the

child’s habitual residence. The mother remained in this jurisdiction residing in a variety of homeless person’s accommodations.

10. The Community Welfare Officer notified the HSE of concerns regarding the mother’s ability to care for her premature child in light

of her lifestyle and homelessness. The Medical Social Worker in the maternity hospital also noted concerns for the safety of the child

who was in the Neonatal Intensive Care Unit in the Hospital and noted concerns about the fractious relationship between mother and

father even in the maternity hospital.

11. The Social Work Department had already procured a psychological assessment of the mother between September 2009 and

October 2009 in the context of their earlier engagement with her. This assessment by the clinical psychologist concluded that the

mother had serious personality difficulties and a history of chronic difficulty in sustaining a stable lifestyle for her and her children. She

also had previous ill-defined mental health difficulties. The Psychological assessment was that the mother presented as meeting the

DSM IV clinical criteria for histrionic personality disorder. Additionally, this psychological assessment found that the mother was likely

to continue to have difficulty sustaining a stable lifestyle and it was recommended that she be referred for further psychiatric

assessment and evaluation.

12. On 30 September 2012, an Emergency Child Protection Conference was held and it was determined that the risk to the child was

so high if discharged from the maternity hospital to the care of the parents, that an Interim Care order should be applied for. The

mother subsequently sought hospital treatment for a fractured jaw which she claimed to have suffered following an altercation and

though she denied that the father had perpetuated this injury, she agreed that her relationship with the father was consistently

violent.

13. Due to concerns about the mother’s ability to care for the child due to her alcohol abuse, chaotic lifestyle, and domestic

upheaval, the HSE concluded that the mother did not have the capacity to care for a very sick infant at that time and consequently

sought an Interim Care Order.

14. The child was admitted to the care of the HSE on the granting of an Interim Care Order on 6 October 2011, which has been

extended by the Court on 14 occasions since that date until the date of hearing. Two earlier dates were fixed for the hearing of this

case, but these dates were vacated on consent to facilitate the mother engaging in services to gain traction on her alcohol addiction

and resolve her homelessness so that a full Care Order could be avoided.

15. On the day of hearing, it was indicated to the Court that the mother did not propose to contest the application of the HSE for a

Care Order for the child but opposed the making of a Care Order until the child reached the age of 18 years. The mother indicated her

consent to the making of a Care Order for a period of one year.

16. I have read and considered all the Reports and Medical Reports adduced in evidence and I have heard the evidence of:

(i) Social Work Practitioner 1;

(ii) The Clinical Psychologist;

(iii) Social Work Practitioner 2;

(iv) The Mother; and

(v) The GAL

17. Social Work Practitioner 1 in evidence outlined her involvement with the case since 18 January 2012 and as outlined in her Reports

to Court. Her evidence was that the mother’s engagement was sporadic; there were long periods of time when she was out of

contact and failed to engage with the Social Work Department or avail of access to the Child. However when she did engage, that

engagement was positive. Her evidence was that the mother resided in various homeless accommodations and she was barred from

some accommodations due to alcohol misuse or because of altercations. The mother was offered detoxification facilities and originally

refused to take that option but ultimately went into detoxification in May and June of 2012. Her evidence was that she was very

hopeful that this would result in a major change in the mother’s life. She endeavoured in this period to assist the mother in securing

accommodation and protecting herself from domestic violence. The mother engaged very well in the process when in treatment;

however, on her discharge to the step down facility, the mother immediately drank again. It was also her evidence that the mother

told her that she was the victim of domestic violence from the father of the child. When she attained a brief period of sobriety the

mother acknowledged that she understood that it was important for her to exit the violent relationship if she wished to parent her

child. It was her evidence that a significant issue inhibiting reunification of mother/child was the mother’s inconsistency. This

inconsistency related to her engagement with the HSE and her engagement at access, her inability to break free of the violent

relationship with the father, and her inability to remain alcohol free and secure accommodation. She did not accept that her

relationship with the father was now ended. She conceded that when the mother did engage she did so positively and was attentive

to the needs of the child.

18. The clinical psychologist gave evidence in support of her Report to Court of 2 November 2009 which set out a comprehensive

personal history and history of difficulties encountered by the mother. She found this difficult to do, as the mother was not consistent

or sequential in her recounting. She met the mother in three different locations due to her homelessness. She undertook a

psychometric evaluation and clinical assessment of the mother. The mother presented with a history of chronic difficulty in sustaining

a stable lifestyle for her and her children and had limited insight into the effect that this might have had on the children and no

concrete plans about how stability could be provided. She recounted some previous ill-defined mental health difficulties. It was her

assessment that the mother’s IQ was in the lower end of the average scale according to the Weschler Adult Intelligence Scale test

administered. It was her opinion that the mother met the clinical criteria according to the DSM IV for Histrionic Personality Disorder.

This diagnosis implied that a person’s personality tended towards the dramatic, a person with this diagnosis was impressionistic and

prone to misjudgements and suggestibility. Given a context of low average intellectual ability, this diagnosis was likely to affect the

person’s functioning across all major domains of life. Her assessment of the mother was that she presented with Histrionic Personality

Disorder with all of these vulnerabilities. Her life experiences stemmed from this fact and not by reason of her reactions to life’s

turmoil’s with limited coping skills. She agreed that insight could be acquired by a person in particular circumstances with assistance.

Her evidence was that lack of capacity is a fundamental part of the mother’s personality. She did not believe that Cognitive

Behavioural Therapy would be of assistance in this case but conceded that Dialectical Behavioural Therapy might be of assistance in

promoting stability necessary to assist the mother in achieving consistency in access. She was of the view that it would be over

optimistic to expect that Dialectical Behavioural Therapy would be able to effect sufficient change to enable a person to undertake

the care and upbringing of a child.

19. Social Work Practitioner 2 gave evidence in this case regarding her involvement as the allocated social worker since 8 November

2012 and as outlined in her Reports to Court. She evidenced the absence of engagement by the mother with access to the child or in

‘Child in Care Reviews’ regarding the child’s life in care since 26 September 2012 to the date of hearing. It was her evidence that after

a long period of disengagement the mother has now expressed the wish to detoxify again and change her life. The mother was now

willing to engage in rehabilitation and supported accommodation following the period of detoxification for a period of 24 weeks. The

social worker is supportive of this but indicated that her professional opinion was that a Care Order for the Child should be made in

order to provide security in care for the child. In the event that mother is successful and gains traction in her addiction and

homelessness, she retains the option to apply to Court to discharge the Order. It was her opinion is that this is preferable to a Care

Order for a shorter duration, such as a year. She was unshakable in her professional opinion that the Child needs stability to be put in

place now. The Child is almost 18 months old and her attachment is at critical period of development. The child recognises the main

people in her life and that is why consistency in access is a very important thing for the child. It was her professional opinion that it

was critical for the child to experience stability in her care now and throughout her childhood. She is hopeful that the mother will

make the necessary life changes and develop insights, acquire stability, link with all supportive services including the Social Work

Department, and avail of access consistently. She agreed that she has no concern around the quality of access by the mother but is

concerned deeply about the inconsistent pattern of access and long gaps when no access takes place. Given the non-engagement by

the mother in access the social worker was clear that she would require a few meetings with the mother before creating an access

schedule. Her rationale was that given her long period of disengagement in access it was necessary to ensure that re-commencing

access is likely to result in sufficient consistency for the Child in order to be in the Child’s best interest.

20. The mother gave evidence in this case that she has in the past used alcohol to numb the pain and stress in her life due to

homelessness and the loss of children to care. She contended that her use of alcohol served this function in this country and not in

her country of habitual residence. She conceded that she had problems there but their root cause was different. When she entered

into detoxification she had every intention of gaining sobriety but became embroiled in the group dynamic and tried to help others. Her

evidence was that she intends to prioritise her own recovery now and is going to do that for herself rather than for others, even for

her child. She agreed that right now she lacked the stability and capacity to care for her child. She found it difficult to get out of the

homelessness cycle. She proposes to try to extend the period of supported housing provision after detoxification, but she agreed that

she had no firm plans yet. She agreed that she had not attended access with the Child or meetings regarding the child for a long

period as when she slipped from the path of sobriety she was too guilty to engage. She indicated that her relationship with the father

was at an end.

21. The father did not give evidence or engage in the proceedings and has not availed of access with the child since the child came

into the care of the HSE.

22. The GAL in evidence stated that the Child has had health difficulties associated with premature delivery including restricted

growth and milestone development. Parental consent was required to undertake a CAT scan under sedation. Unfortunately, that

consent could not be procured from the mother necessitating an Order of Court to dispense with consent so that the Child could have

the scan. While surgery is not required at this juncture great care must be taken by the foster carers to ensure that the Child does

not sustain injury through an accidental fall. The GAL’s evidence is that the mother’s high level of vulnerability, on-going alcohol

misuse and history of domestic abuse and mental health concerns remains a significant barrier to her improving her life sufficiently to

assume the full time care of her Child.

23. The Child is too young to express views; however, the GAL has observed the Child with the foster carers to be alert, engaging,

and content and at ease in her home environment with her foster carers. The Child has developed a strong attachment to her foster

carers. The GAL is of the view that the Child has little or no recognition of her mother and no recognition of her father either as a

parent or a significant person in the life of the Child. The GAL is concerned that the Child would find access with the mother difficult

and upsetting unless a consistent relationship between them has first been established.

24. The GAL’s evidence is that the mother has tremendous affection, love, and warmth for the child but the difficulties in her life have

impeded her in developing a relationship with the Child. Furthermore, it is the GAL’s professional opinion that a full care order is

required to assure consistency and an adequate level of care for the Child. Neither parent could, in his view, fulfil with confidence

their ability to protect and meet the developmental needs of the Child. Were the child to be returned to the care of the parents or

either of them at this time, it would expose the Child to significant risk of emotional disturbance and intermittent neglect.

25. The GAL was concerned that the HSE Placement Committee would approve the current foster carers as the long-term carers for

the Child.

Section 18 Threshold

26. Having heard the evidence set out above, I am satisfied that the threshold criteria under section 18(1)(c) of the 1991 Act are

met and that the Child’s health, development, and welfare is likely to be avoidably impaired or neglected if a Care Order is not

granted. I am satisfied that the duration of the Care Order shall be until the Child reaches the age of majority at eighteen years [date

given].

27. The Child Care Acts, the Constitution, the European Convention of Human Rights, and the Charter of Fundamental Freedoms all

require courts to carefully examine and be satisfied as to whether a Care Order is a reasonable and proportionate interference

justifying the removal of a child from a parent in order to protect the best interests of the child. Courts must examine whether the

reasons a child is taken into care are both relevant and sufficient —I am satisfied on the evidence in this case that the reason this

child was taken into care meets the threshold criteria of section 18(1)(c) of the Act. As the protective measures taken certainly

interfere with the parent and child relationship, an appropriate balance must always be struck to ensure that no more than is

necessary should be done and that reunification must always be kept on the agenda.

28. In addressing the issue of proportionality, the primary issue is whether a care order should be made for one year — as proposed

by the mother — or whether a care order should be made until the Child is 18 years of age — as proposed by the HSE and supported

by the GAL.

29. The case of K and T v Finland App No. 00025702/94 (ECtHR, 27 April 2000) concerned the removal into care of a new-born baby

at the moment of its birth and therefore the facts in this ECHR decision have a resonance with this case. The other case of relevance

is Olsson v Sweden App No. 13441/87 (ECtHR, 30 October 1992) to the extent of the principal it established that a measure taken to

protect a child must be justified by ‘relevant and sufficient’ reasons justifying them as proportionate to the legitimate aim pursued.

The Court and the HSE in this case must balance the issue of the Child’s need for placement security, the issue of the Child’s contact

or access with the mother/father, and the issue of reunification (which at all times must remain a possibility).

30. I believe that the HSE’s actions were justified in the circumstances of this case and that various life circumstances presented the

mother with an impossible scenario preventing her from caring for her child. The HSE was obliged to protect the Child. Very honestly in

her evidence, the mother has demonstrated insight that she understood exactly where the HSE were coming from when they took

that protective measure. She hopes to be able to resume care in one year.

31. Having regard to the evidence, including the psychological evidence, it would appear that the mother’s challenges are quite

considerable. Alcohol abuse and the pervasive issue of homelessness have had an added impact in the context of her diagnosis of

histrionic personality disorder. In addition, through no fault of her own, she had been most unfortunate in her choice of partners and

this has impacted on the mother’s stability, which has affected her ability to care for or have access to her child in care on a

consistent basis. Although, when the mother has had access, she has behaved in a very appropriate manner. Furthermore, her

interactions with the various social workers and psychologists indicate that the mother has the ability to get on well with others.

32. However, limiting the Care Order to a period of one year would not achieve the correct balance in this case. In essence, to limit

the Care Order to a short period would expose the Child to being the hostage of unfortunate circumstances that have occurred in the

lives of others. The HSE have endeavoured to take a less draconian measure: they have vacated two hearing dates, they have

assisted and helped the mother, and they have encouraged her to address her issues of addiction and homelessness. I accept that

the mother has developed greater insight to combating her addictions and I hope that this insight can help her attain sobriety and

stability in her life. That said, in my view unless the order is made until the child is 18 years of age, it would expose the child to

further risk based on the uncertain circumstances of both of the parents. This clearly would not be in the Child’s best interests and

achieve the balance required by section 24 of the Child Care Act, 1991.

33. The issue of proportionality is extremely relevant and if the Court had any professional evidence, which indicated that it would be

possible to achieve a platform from which the mother could endeavour to achieve reunification in a lesser time period, it might have

been possible to make an order for a shorter period of time. However, there is no such evidence before the Court. Furthermore, the

progress of the mother is dependant on her overcoming her addiction issues including detoxification and rehabilitation. Given that no

timeline can be placed on the mother gaining traction on her life, the only option left to the Court is to make the Care Order until the

child is 18 years of age. However, once the mother overcomes her addictions and achieves the requisite amount of stability in her life,

it will then be possible for her to come before the Court and ask the Court whether in the circumstances the Care Order should be

discharged.

Section 37 Access

34. The right of both a child and parent to access is enshrined in law. However, in light of the mother’s current status — awaiting

detoxification — the Court is unable to define a regime of access. Therefore, access must be at the discretion of the HSE but within

the parameters of section 37 of the Child Care Act 1991. Should the question of access have to come before the Court, access will

be determined with regard to the best interests of the Child.

Section 47 Directions

35. The Court makes the following directions pursuant to section 47:

A. That the case is to be re-entered before the Court on notice to the GAL by the HSE in the event that the HSE

process for matching the Child’s long term placement with his current carers is not finalised.

B. That the case is to be re-entered before the Court by the HSE on notice to the GAL in the event that the case

becomes unallocated to a designated Social Worker/Fostering Link Worker for a period of 6 weeks.

C. That the case is to be re-entered before the Court by the HSE on notice to the GAL in the event any planned or

unplanned change of current foster placement.

D. If the GAL in this case is no longer available, the HSE is to bring an application to the Court to have a GAL

appointed pursuant to section 23.

E. After Care Review on the Child’s 17th birthday [date given] to assess After Care Service needs of the Child.

F. I am not directing a re-entry for review in a year’s time, as it would put too much stress on the mother. She has

indicated herself that she has to prioritise her own health and development. I therefore give liberty to the mother to

re-enter this case for review of any Direction under the Order or to vary or discharge the Order in accordance with

section 22 of the 1991 Act.

G. Liberty to HSE to re-enter;

H. The GAL to be discharged with the usual order as to costs to be met by the HSE and costs to be taxed in default

of agreement.