Court grants care order and access directions for children of parents with mental health and parenting capacity issues.

[2014] IEDC 11

AN CHUIRT DUICHE THE DISTRICT COURT

THE CHILD AND FAMILY AGENCY (The CFA)

APPLICANT

-AND-

JO

FIRST NAMED RESPONDENT

AND

MO

SECOND NAMED RESPONDENT

Child Care Act 1991 – Section 18 (1)

CARE ORDER

In the matter of Child 1, Child 2 and Child 3, Children

12 August 2014

1. This is an application by the Child and Family Agency (CFA) for a care order in respect of three children who are aged thirteen

years, four years and three years respectively and will be referred to throughout this decision as Child 1, Child 2 and Child 3

respectively. Nothing may be reported concerning this case which would serve to identify any of the children who are the subject of

these proceedings or the parents.

2. The respondent parents are originally from [a non European country], they are married but have experienced difficulties in their

relationship and live separately, however during the course of this hearing they have decided to reunite. At the conclusion of this

hearing they seek the return of the children to their joint care.

4. Each parent was separately represented in these proceedings.

5. The children’s wishes and interests were represented to the Court by their Court appointed Guardian ad Litem (GAL).

BRIEF OVERVIEW

6. The respondent mother is from [a non European country] and arrived in Ireland in 2000 whilst she was pregnant with Child 1. The

respondent father remained in [a non European country]. This family first became known to the social work department in 2005. The

respondent mother has a history of long-standing mental illness. In November 2005 the respondent mother was admitted to an acute

psychiatric ward and detained under the Mental Health Act 2001 at which time the gardaí invoked section 12 of the Child Care Act

1991 (hereinafter the Act of 1991) and Child 1 was received into the care of (the then) Health Service Executive (HSE). Between

2005 and 2006 Child 1 was received into the care of the HSE on three occasions.

7. In 2007 the respondent father moved to Ireland from [a non European country] and Child 1 was returned to his/her parents’ care in

2008. Child 2 was born in April 2009 and Child 3 was born in July 2010.

8. Between 2010 and 2012 the Social Work Department received a number of referrals with regard to the care of children. In May

2013 a supervision order was granted in respect of the three children the subjects of this application. In June 2013 the respondent

mother was again detained under section 12 of the Mental Health Act 2001. The gardaí invoked section 12 of the Act of 1991 and the

three children were received into the care of the HSE on foot of an emergency care order. An interim care order was subsequently

granted in respect of each of the children in July 2013, which has been extended on occasions since that date.

9. The respondent mother has long-standing mental health difficulties. Her consultant psychiatrist has diagnosed her as suffering from

bipolar affective disorder/schitzo-affective disorder which is a chronic and relapsing mental illness characterised by episodes of

depression and/or elation and periods of psychosis, delusions and paranoid persecutory beliefs (especially about her husband). The

evidence of the community mental health nurse and the senior registrar is that patients with such a mental health diagnosis need to

take medication on a regular basis and treatment is usually life-long. There is a strong likelihood of future relapse if the patient does

not comply with the treatment regime. The social worker has given evidence of serious concerns about the impact of this diagnosis on

the respondent mother’s ability to parent.

10. The respondent mother has had a number of admissions to psychiatric hospitals and has exhibited symptoms of paranoia, auditory

and visual hallucinations, religious persecutory beliefs and exhibited bizarre behaviours. Her bizarre behaviours have often involved the

children. During these periods of illness the respondent mother does not appear to believe that she is unwell and refuses to take

medication and engage with mental health services. The social worker has given evidence that in her opinion the respondent mother

does not appear to have an understanding of the impact of her mental illness on the children.

11. In 2007 Child 1 was referred to a child and adolescent mental health service due to emotional and behavioural difficulties

manifested by encopresis, enurisis and food related difficulties. These difficulties now appear to have resolved.

12. Child 2 and Child 3 have been diagnosed with sickle cell disease, a chronic and potentially life-threatening disorder of the blood

cells. The disease can result in sickle cell crisis which may cause severe pain, tissue damage and can in certain instances be fatal.

Children with this disease require ongoing monitoring and supervision and medication. I have heard the evidence of the medical social

worker at a children's hospital that Child 2 and Child 3 regularly missed medical appointments. It is the father’s case that the mother

kept details of appointments from him or told him she had attended with the children when in fact she had not.

13. I have heard evidence that at various times the respondent mother has made allegations of domestic violence by the respondent

father. In January 2013 she obtained a barring order against the respondent father. From January 2013 until the children's reception in

to care in June 2013 the respondent mother was the main carer for the children. The respondent father did not appeal the barring

order until some time subsequent to the children’s reception into care. His appeal was allowed in the absence of the respondent

mother. I have heard evidence that during this time the respondent mother was not engaging with the community mental health

service and did not appear to be taking her medication. Child 1 has told professionals that his/her mother became particularly unwell

during this time and progressively got worse as time passed. Child 1 has stated that he/she felt unsafe and felt that the younger

children were unsafe also.

14. Family support was offered to the respondent mother who did not properly engage with this service during that time.

15. Subsequent to the children's reception into care in June 2013 the respondent father when contacted by the social worker

indicated that he wanted the children to be returned to his care. The social worker outlined a number of steps the respondent father

would be required to take before the CFA could consider it appropriate to return the children to his care including participating in a

parenting capacity assessment and locating suitable accommodation.

16. The parenting capacity assessment was conducted with the respondent father and concluded that he does not have the capacity

to parent the three children. A number of risk factors were identified including his apparent lack of understanding of the emotional

impact of the mother's mental health problems on the children, his demonstrated lack of understanding of the children's emotional

capacity in general and also that he was not considered to act as a sufficiently protective factor to the children. The assessment

concluded that he has very limited insight and knowledge into sickle cell disease nor has he been able to demonstrate insight into the

importance of structure, consistency, boundaries and stability in the lives of the children. It was also assessed that he was not

currently able to provide an appropriate home for the children. The assessment concluded that he has an extremely limited

understanding and knowledge of the children's basic and emotional needs and raised concerns regarding his level of cognitive capacity

and how this impacts on his ability to process and retain information vital to the care of the children. The respondent father disputes

the conclusions of this assessment and suggests the assessment is flawed in a number of respects and that he has demonstrated an

understanding of the children’s emotional needs.

17. A cognitive assessment of the respondent father was subsequently completed and concluded that he has a borderline intellectual

disability. It is the professional opinion of the social worker that the respondent father has shown little evidence of capacity to

change sufficient to allow him to develop skills to care for the children. This is also disputed by the respondent father who argues

that if he does in fact have a borderline intellectual disability the parenting capacity assessment is insufficient to determine his actual

or potential capacity to parent. The second opinion sought by the father to the cognitive assessment and the parenting capacity

assessment sadly agrees that the children require a level of care which he is not able to provide.

18. The respondent father attended for access on a weekly basis in June and July 2013. He subsequently travelled to [a non

European country] from July to September 2013. On his return to Ireland the respondent father was given support and advice from

the social worker and the GAL on how to improve the quality of his access with the children. I have heard the evidence of the social

worker and the GAL that they respondent father has made some progress in this regard. Since September 2013 he has regularly

attended at access with the children.

19. Since the children's reception into care in June 2013 there has been relatively little contact between the respondent mother and

the children due to her mental health problems. It is the evidence of the social worker that during this time the respondent mother

has shown no insight into her mental illness and the social worker has been unable to have a clear conversation with the respondent

mother to advance positive access between the respondent mother and children. The respondent mother has not had access to the

children since August 2013. She has not had telephone contact with the children between January 2014 and July 2014. I have heard

the evidence of the social worker who has given her opinion that the respondent mother is not in a position to provide stability given

the serious nature of her mental illness and her inability to accept the impact her mental health has on children. The social worker

hopes that the respondent mother will sustain a consistent period in the community and maintain her mental health wellness sufficient

to enable her to engage positively with the children.

20. The three children have been placed with their current foster carers since shortly after their reception into care. It is the CFA’s

intention for the children to remain in this placement together where they are settled and have formed positive relationships with their

foster-carers.

Parents Position

21. From the outset of this hearing the respondent father has opposed the CFA’s application and has argued that the threshold for

the granting of care orders for the children has not been met and that the CFA’s assessment of his capacity to parent is deficient. He

seeks the return of the children to his care. He argues that no supports have been offered to him to parent his children nor has be

been offered the opportunity to parent the children in the absence of the mother.

22. At the commencement of this hearing in March 2014 the respondent mother had not instructed her legal team. She was

subsequently involuntarily admitted to a psychiatric hospital for treatment for her mental illness. Following the adjournment of this

hearing to resume in July 2014 the respondent mother had been discharged from residential psychiatric treatment and subsequently

engaged in the hearing.

23. At this time the parents were residing separately but indicated to the Court their intention to reunite in the near future and

presented as a couple seeking to parent their children. The respondent mother argued that she was now receiving medical treatment

by way of depot injections for her mental illness and that she now demonstrated the necessary insight into the management of her

illness not previously shown.

The CFA Case

24. The CFA sought a care order in respect of all three children until they attain the age of eighteen years. The CFA argued that the

children's health, development and welfare has been and is likely to be avoidably impaired or neglected if they are placed in the care

of the respondents and that the children require care and/or protection which they are unlikely to receive from the respondent

parents. The CFA identified the following risk factors which it argues has impacted on the respondent parent's capacity to meet the

children's needs while in their care:

• the respondent mother is diagnosis of bipolar/schitzo-affective disorder

• the respondent mothers limited capacity to parent when refusing to engage with mental health services

• the respondent father’s lack of insight into the impact of the respondent mother's mental illness on the children

• the respondent mother's allegations of domestic violence

• the respondent father’s assessed parenting capacity and lack of appropriate accommodation

• the emotional neglect of children by the parents

• the children's needs both physical and emotional and the parents lack of insight to the children's needs.

The CFA argued that care orders for each child to age 18 are proportionate given the circumstances of the children's experience in

their parents care.

25. The GAL supported the application by the Agency for a care order in respect of the three children until they attain the age of

eighteen years. The Guardian’s view may be summarised as follows. The Guardian supports the CFA's application and recommends a

care order for the full duration for each child. She agrees there are significant concerns about the respondent father's parenting and

understanding of the children's needs. She has noted long-standing concerns in relation to the parenting the children received at

home. She raises concerns regarding the decision to return Child 1 to his parents care in 2008 and also raises concerns regarding the

respondent father’s ability to learn and his capacity to change. She notes there is a significant age gap between Child 1 and his

siblings and notes there are differing needs as a result of this age gap. She reflects Child 1’s wish to return to his mother's care only if

she takes her medication and becomes well. She notes Child 1’s wish to return to his father's care but that he wants the social work

department to work with his father so that he and his siblings never have to be removed by gardaí again. She noted the respondent

father's consistent attendance at access but suggests further improvements can be made to the quality of access between the

children and their father. She notes that Child 1’s worries have reduced significantly but suggests the child needs support to remain

settled and happy in his/her care placement. She also notes that statements Child 1 has made about his previous experience in foster

care requires further investigation by the CFA. She notes it is imperative that the children’s cultural background continue to be

supported in their placement. She also suggests a strategy meeting should take place between the CFA, the parents and the

Guardian within one week of a care order being made to discuss how the children be informed of the court's decision and to agree a

joint statement to the children.

25. I heard evidence from:

a) The medical social worker at the hospital where the children have attended, who gave evidence of the children’s

attendances at the hospital for treatment for various injuries and the referrals made by the hospital to the social

work department of their concerns regarding the children’s care;

b) Garda JM who gave evidence of the circumstances of the mothers involuntary admission for psychiatric

treatment in June 2013 and how it was necessary to invoke section 12 of the 1991 Act which resulted in the

children’s reception into care;

c) the Community Psychiatric Nurse at the mother’s mental health service, who gave evidence of the mother’s

mental health diagnosis, presentation and history and poor history of engagement with the service. She also gave

evidence of the disharmony and verbal arguments in the family home between the mother and the father when she

was refusing to take her medication;

d) the Allocated Social Worker who gave extensive evidence as set out in the social work report she prepared for

Court and which is contained in the booklet of reports and also of her assessment of the father’s capacity to parent

which is also set out also in the booklet of reports;

e) the Senior Registrar to the mother’s Consultant Psychiatrist who gave evidence of the mother’s mental health

diagnosis, presentation and history and noted that her medial record does not record the mother at any time

displaying any insight into her illness. It must be noted that the Registrar had never himself seen or treated the

mother and his evidence was based on his reading of the medical record;

f) the Medical Social Worker at the children's hospital who gave evidence of Child 2 and Child 3’s medical condition

and admissions for their sickle cell condition and the very poor attendance record at the Sickle Cell Clinic and

engagement with their treatment regime by Child 2 and Child 3 while in the care of their parents;

g) the Clinical Psychologist who assessed the cognitive functioning of the respondent father to be at the upper end

of the borderline range of ability but noted his functioning in the low average range in his capacity to learn in

general;

h) the Clinical Psychologist who provided a second opinion assessment and reported to the father and whose report

and evidence was relied on by the CFA. In her assessment the father has little or no insight, poor reflective

capacity and no ability to connect to the needs of his children to poor caring and [displays a] lack of responsivity

to their care seeking needs. She concluded that the children need a level of care from the father which he is unable

to provide. She recommended he undertake a number of courses to help him understand the psychological and

emotional needs of the children;

i) the respondent father;

j) the respondent mother; and

k) the Guardian ad Litem.

SECTION 23

26. In addition to the direct evidence that I have heard I have also been asked to admit into evidence the statements of the children

scheduled by the CFA and also those scheduled by the respondent father. These statements I have ruled to be admissible as

evidence on the basis that in respect of Child 2 and Child 3 the children should not be called to give evidence because of their ages

and in respect of Child 1, Child 2 and Child 3 that it would not be in the interests of their welfare. I am satisfied it is in the interests of

justice to admit the statements and that to admit them will not cause any unreasonable unfairness to the respondent parties. I have

noted the concerns raised by counsel for the father regarding the schedule of statements prepared by the CFA who she suggests has

failed to properly set out the statements to reflect the actual statements made, has failed to note the questions posed to each child

to elicit the statements and has failed to describe the context within which the statements were made. I have taken this into

consideration in assessing the weight to attach to these hearsay statements of the children. However, I am satisfied the

circumstances in which the hearsay statements are adduced does not constitute an attempt to prevent the proper evaluation of the

weight of such statements.

THE LEGAL POSITION

27. The relevant law to be applied is well established. The evidential threshold to be established is a high one. The Constitution

confirms that the State may only intervene to supply the place of a parent in exceptional circumstances where there has been

parental failure. Any interference considered necessary to protect the rights of the child must be implemented by appropriate means

but always with due regard to the natural and imprescriptible rights of the child. It is necessary under the Constitution and under the

European Convention of Human Rights (ECHR) and the European Charter of Fundamental Rights (ECFR) to have regard to the rights of

the parents and the family.

28. Section 18 (1) of the Act of 1991 is the statutory expression of this Constitutional threshold and provides for the making of a care

order where:

(a) the child has been or is being assaulted, ill-treated, neglected or sexually abused, or

(b) the child's health, development or welfare has been or is being avoidably impaired or neglected, or

(c) the child's health, development or welfare is likely to be avoidably impaired or neglected,

Even where such circumstances have been established evidentially it is necessary for the CFA to establish that the child requires care

or protection which he/she is unlikely to receive unless the court makes an order under this section.

PROPORTIONALITY

29. Where the threshold for State intervention has been reached the Court must then consider the length of order which it is

proportionate to grant having regard to the particular circumstances of each case.

30. Section 18(2) of the Act of 1991 allows the Court to commit the child to the care of the CFA for so long as he/she remains a child

or alternatively for such shorter period as the Court may determine.

31. Where the Court makes an order of limited duration it may, of its own motion or on the application of any person, extend the

operation of the order if the Court is satisfied that grounds for the making of a care order continue to exist with respect to the child.

32. There is a clear line of Irish and European jurisprudence which considers the rights of children where there was or is an

(un)intentional failure of parental duty and where it has been considered necessary to prefer the rights of the child over the parents

or the family to ensure the protection of the children’s welfare. It is clear that the Court must apply a test as to the proportionality of

any order made to assure the welfare of the children; the Court must go no further than is strictly necessary to assure the welfare of

the children

33. Article 8 of the ECHR is particularly relevant to this consideration. The legitimate exceptions to Article 8(1) are set out in Article

8(2) and provide that there must be no interference by a public authority with the exercise of the right to private and family life

unless three particular conditions are fulfilled: that the interference is in accordance with the law; that the interference is in pursuit

of one of the legitimate aims defined in Article 8(2), e.g. the protection of the rights and freedoms of others (which encompasses the

interests of the child), that the intervention must be necessary in a democratic society: i.e. the reasons given for the interference

must be relevant and sufficient, and it must meet a pressing social need and be proportionate to that need.

34. It is clear that the more far reaching and severe the interference proposed the stronger the reasons required to justify it. The

right to contact between a parent and child should not be gratuitously interfered with but must be tempered where the welfare of the

child requires. The Court must attach particular importance to the best interests of the child which may override the rights of the

parent(s). There should not be a presumption in favour of permanent separation, and there is an obligation to carefully assess risk

before intervention and to calibrate the consequences of intervention on all parties and ensure that measures taken are proportionate

to the risk.

35. Having heard the evidence adduced I must consider the position of the parents to be considered as joint custodians and carers

for the children as is their position at the conclusion of the hearing. I conclude that on the balance of probabilities it has been

established by the CFA that the health, development and welfare of each of the children has been and is likely to be avoidably

impaired or neglected if they were returned to the care of their parents at this time and that a care order under section 18(1)(b) and

(c) of the Act of 1991 (as amended) is necessary to protect the interests of each child in this case.

36. In considering the duration of the care order I consider an order until each child attains the age of eighteen years represents a

proportionate and necessary means of assuring the welfare of the children under a care order having considered the circumstances of

this case.

37. I am satisfied that such order is proportionate for the following reasons:

(a) Child 1 has already experienced multiple removals from his/her mother's care by gardaí and placement in care at

times when his/her mother's mental health has deteriorated to such an extent as to render her incapable of

providing adequate care for him/her.

(b) Child 2 and Child 3 have a serious medical condition which requires ongoing and frequent attention and

treatment to avoid serious adverse health consequences or potential fatality. I am satisfied on the evidence before

me that the respondent parents have failed to ensure that Child 2 and Child 3 attended for regular medical

appointments or received regular treatment for their condition.

(c) In considering the evidence I am satisfied that each of the children has experienced emotional trauma and

neglect at times when their mother's mental health has deteriorated to such an extent as to render her incapable of

providing adequate care to them. I am satisfied that the trauma and neglect suffered was not due to any intent to

harm by the respondent mother but was rather an unfortunate result of her mental illness.

(d) In considering the assessment of the respondent father’s capacity to parent, while there may have been

shortcomings in the application of the methodology employed, I am satisfied that such shortcomings are not of a

sufficient degree to render the conclusions of the assessment unreliable. I am satisfied to accept the conclusion

that the respondent father has not shown adequate insight into the impact of the mother's mental illness on the

children’s emotional well-being. I am also satisfied to accept that while the respondent father may have been

considered to be a protective factor in the past, his lack of action to protect children during the period when he

was excluded from the family home from January 2013 raises serious questions about his ability to act as a

protective factor to the children.

(e) I acknowledge the respondent mother is currently enjoying a period of mental health well-being and compliance

with her treatment regime which I sincerely hope she will be able to sustain. However, it would appear she is in the

early stages of her recovery and her history suggests her risk of relapse into mental illness is high. Therefore it is

reasonable to assess the risk of future harm to the children should they be returned to her care in the near future

as significantly high. I do not discount the possibility that the respondent mother may sustain her current level of

well-being and should she do so she may in the future seek to have the order discharged and the children returned

to her care.

(f) I am satisfied on the evidence before me that the respondent father does not suffer from an intellectual

disability and that he has demonstrated some capacity to learn and develop his parenting skills. However, I am not

satisfied that he has shown sufficient development in these skills to overcome the deficits in his parenting abilities

at this time. This may be due in part to delays in providing relevant assistance to him to develop these abilities. He

may in time and with the proper guidance develop the skills at which time in the future he may seek to have the

order discharged and the children returned to his care. The CFA should continue to provide him with this guidance.

SECTION 37 ACCESS

38. Having heard the evidence I direct that access between the parents and the children should be in accordance with section 37 of

the Act of 1991 bearing in mind the decision of the European Court of Human Rights in K and T v Finland [2001] 2FLR 707 which

emphasised that removal of the child from the parents must not be done in such a way as to destroy the natural bond between them

and emphasising the important role in this case for the parents in informing the children’s familial and cultural needs. I will adjourn the

father’s application for increased access to the a date in October 2014.

SECTION 47 DIRECTIONS

39. I direct that this case is re-entered before the Court in September 2015 for the Court to assess:

(a) the progress made by the respondent mother in managing her mental health;

(b) the progress made by the respondent father in terms of addressing the concerns identified as impediments to his

parenting capacity;

(c) their engagement with the CFA and with such services as may be provided by the CFA to them;

(d) their attendance at access with the children; and

(e) to consider the needs of the parents and the children.

40. The CFA is directed to provide each parent with all supports identified as necessary to assist each of them acquiring sufficient

parenting capacity to parent their children, or to link them with such services deemed necessary but which are not within the remit of

the CFA.

41. I direct that the case is to be re-entered before the Court by the CFA (on notice to the parents and the GAL) in the event that:

(a) The case becomes unallocated to social worker or fostering link worker for a period of six weeks;

(b) If the CFA (for any reason) fails to comply with the statutory care planning regulations;

(c) The current foster placement breaks down or should the CFA seek to change the placement for any reason.

42. If the GAL in this case is no longer available at that time then the CFA is to bring an application to the Court pursuant to section

23 of the Act of 1991 for the purposes of having a GAL appointed.

43. I further direct that Child 1 be provided with an After Care Worker within one month of his/her 16th birthday and that this matter

be listed in court in October 2018 for the court to assess his after care service needs and the court is to be provided with his draft

after care plan on that date.

44. I further direct that Child 2 be provided with an After Care Worker within one month of his/her and that this matter be listed in

court in May 2026 for the court to assess his/her after care service needs and the court is to be provided with her draft after care

plan on that date.

45. I further direct that Child 3 be provided with an After Care Worker within one month of his/her and that this matter be listed in

court in July 2027 for the court to assess his/her after care service needs and the court is to be provided with her draft after care

plan on that date.

46. I reserve all applications for costs to the 17 September 2014 and I grant liberty to apply.

Colin Daly

District Court Judge

The Children Court