District Court grants three-year care order for child due to parental substance misuse and mental health issues.

[2014] IEDC 12

AN CHUIRT DUICHE THE DISTRICT COURT

CHILD AND FAMILY AGENCY

APPLICANT

-AND-

KC

FIRST NAMED RESPONDENT

AND

GG

SECOND NAMED RESPONDENT

Child Care Act 1991 – Section 18 (1)

CARE ORDER

In the matter of Child S, a child

22 August 2014

1. This is the Child and Family Agency’s (CFA) application for a care order in respect of Child S until he/she reaches his/her age of

majority at eighteen years of age.

2. The mother and father of Child S have been served with notice of this application and were in attendance at court and legally

represented. The mother consented to a care order being granted for Child S until he/she reaches his/her age of majority at eighteen

years of age or such order of shorter duration as the court may determine. The father consented to a care order enduring for a period

of three years and suggested this is a more proportionate order to grant in this case.

Brief Background

3. The background to this family may be summarised in the following manner. The mother has during her childhood been in the care of

the state and has a history of substance misuse, mental health difficulties and homelessness since her teenage years. She has

suffered dramatic events in her life since that time and in 2010 her three older children were received into the care of the Health

Service Executive (as it was then) and the children were placed with their grandmother where they remain.

4. The mother became pregnant with Child S in September 2012 and Child S was born in March 2013. Child S was treated for serious

drug withdrawal symptoms shortly after his/her birth. Child S was received into the care of the Health Service Executive in April 2013

prior to his/her discharge from hospital in April 2013. He/she has been placed since then in the care of his grand aunt and her

husband.

5. Since April 2013 the mother has attended at a local drug treatment facility with varying degrees of engagement and relatively little

success. Various incidents are recorded by the social work department which give rise to concerns in the relation to the mother's

emotional stability and instances at her home which raise serious questions about her ability to act as a protective factor for any

child that might be in her care. The mother’s engagement with the social work department has varied considerably during this time

and she has failed to engage with an assessment of her capacity to parent.

6. The mother did not disclose the identity of Child S’s father until November 2013 and his paternity was confirmed in April 2014. The

mother and father completed a statutory declaration appointing the father as a joint guardian of Child S with the mother during the

course of the hearing.

7. The father himself has a history of drug misuse and addiction of long-standing. I have heard evidence that the father is currently

being investigated for serious drug offences although no charge has yet been made. The mother and father appear to continue to be

unstable in their drug use.

8. The mother’s attendance at access visits with Child S has been sporadic and inconsistent. The father commenced attendance with

Child S in April 2014. His attendance has been consistent and of relatively good quality. The father is seeking an increase in access

between him and Child S. The CFA is of the opinion that this is not in Child S’s interest at this time. The social worker has expressed

her concern regarding the father’s acceptance of Child S’s care status and frustration at the social work system which appear to

have manifested themselves during recent access visits.

The CFA case in summary

9. The CFA case may be summarised in the following terms: Child S needs permanency and stability in order for him/her to lead a

happy and healthy life. Child S’s emotional, social and physical welfare has been and is likely to be avoidably impaired if he/she were

to be returned to the care of his/her parents. The CFA is of the professional opinion that neither the mother nor the father are in a

position to meet Child S’s care needs.

The Mothers Case in summary

10. The mother's case may be summarised as follows: she consents to a care order for Child S until he reaches his/her majority or in

the alternative consents to a care order of shorter duration if the court should so determine. She requests a full review in two years

to allow her to progress in her drug rehabilitation and parenting capacity and to engage in treatment for her mental health difficulties.

Counsel for the mother has indicated it is the mother's intention to apply to discharge the care order after two years. During this time

she intends to commit to drug treatment at an addiction service facility, attending access, engaging with a parental capacity

assessment and to improving her home environment and engaging with all supports offered to her.

The Fathers Case in summary

11. The father offered his consent to a care order for a lesser period which was declined by the CFA. He has put the CFA on full proof

in this hearing as is his right. He admits that he is not in a position to offer care for Child S at this time and counsel on his behalf

submits it is his intention to enter into a residential drug rehabilitation programme which will enable him to care for Child S in the

future. She suggests a care order of three years duration is the proportionate order to make. She argues a care order until Child S

reaches his/her age of majority is disproportionate in the circumstances.

12. The evidence in summary

I have heard the evidence of the following witnesses:

· MS, Social Care Leader

· NB, Social Care Worker

· SB, Allocated Social Worker

· Garda DM,

· S MacD, Counsellor, Drug Treatment Clinic

· Dr Q, Drug Treatment Clinic

· DK, Guardian Ad Litem (GAL)

The GAL’s position in summary

13. The GAL is of the professional opinion that the evidence of the CFA satisfies the criteria necessary to grant a care order in

respect of Child S until he/she reaches his age of majority. The GAL recommends that Child S remain in his/her current placement and

that access remain at the discretion of the CFA social work department. The Guardian suggests that should the father successfully

complete a drug rehabilitation programme and subject to a positive assessment of his capacity to parent the matter of Child S’s care

arrangements could be reviewed by the court in the future.

14. Counsel for the father, and to a lesser extent counsel for the mother, suggests that little or no weight be given to the opinion of

the GAL, as he has not followed Children Act Advisory Board (CAAB) guidelines. Counsel noted that the GAL did not observe access

between the mother or father and Child S, suggested that he was merely duplicating the work of the social worker, and argued that

he has failed to carry out a thorough enquiry, has failed in his duties to the Court and Child S, that he did not meet or assess child in

different environments and relied upon the opinions of CFA.

15. Counsel for the father suggests that the Guardian has not fulfilled his role as set out in HSE v DK [2007] IEHC 488 as he has failed

to arrive at independent assessment, failed to address the issues and give voice to the child, failed to meet the child as often as

necessary in order to be satisfied that the child's wishes are adequately represented regarding his/her care, and that the GAL has

failed to meet the child's family and carers in the community to be familiar with their views and desires regarding the child’s care.

16. The GAL in his report and in his evidence to the court has acknowledged that he has had only one meeting with Child S and

acknowledges that he has not observed access between the father and Child S. He notes that he has made a number of attempts to

observe access between the mother and Child S but it was not possible to do so due to her in non attendance at access. The GAL

accepted under examination that it may have been more beneficial to have observed Child S in his kinship placement and at access

with the father.

17. In the submissions made to the Court on behalf the GAL it is argued that the totality of circumstances and the performance of his

role does not preclude him from providing an appropriate professional opinion and to represent the wishes and interests of Child S to

the Court in this case. Counsel for the Guardian suggests in the context of a pre or non-verbal child the GAL has given evidence that

the totality of assessment takes into account far more than observations at access or in placements and he has enumerated the

enquiries the GAL has made on the child's behalf. Counsel further suggests the GAL in assessing the interests of the child has

examined the nature of the proceedings and the implication of the proceedings for Child S. Counsel argues the Guardian has

conducted a thorough enquiry into Child S’s circumstances and provided an independent recommendation to the Court, has tried to

achieve the most appropriate outcome from the child, has assessed the impact of the proceedings on the child and the child's family

and has acted to protect the child from further stress or distress and has provided a written report which takes into account all

information gathered during his enquiries. He concludes where a GAL is dealing with pre or non-verbal child it is imperative that the

Guardian conduct an evidence-based assessment which is critically reflective and which is underpinned by the gathering of

information from all stakeholders which this GAL has achieved with objectivity and awareness of the thresholds of the application and

in consideration of the relevant research and recommended policy documents and enquiry reports.

18. I must accept that the Guardian has failed to fulfil his role to the full extent enumerated by McMenamin J. in HSE v DK. I accept

an evidence-based assessment is imperative when dealing with a pre or non-verbal child, however it appears to me that when dealing

with a pre or non-verbal child there is a greater imperative to directly observe the child across all aspects of the child’s care in order

to be as satisfied as possible that the child’s wishes, views and interests are accurately reflected to the Court.

19. Here both parents accept that neither is in a position to provide care for a Child S, and neither parent has expressed concerns

regarding the care Child S is receiving in his kinship foster placement and it is clear the GAL is aware of the views and desires of the

parents with regard to Child S’s care. Therefore I cannot accept that I must attach little or no weight to the GAL’s recommendations,

but neither can they assist me to as great an extent as I might wish.

Issues

20. The parent’s positions implicitly and explicitly concede an acceptance that the threshold criteria as set out in s.18 of the Child

Care Act 1991 (hereafter the Act of 1991) has been met and that Child S’s health, development and welfare has been and is likely to

be avoidably impaired or neglected if a care order is not granted and that Child S requires care or protection. The matter at issue is

the appropriate duration of the care order that is proportionate in this case.

21. From the evidence and the parents replies to findings of fact proposed by the CFA the principal issues that remain between the

parties appears to be allegations of the mothers tampering with samples for drug testing, which the mother denies, and the conflict of

evidence regarding the father’s commitment to a residential drug treatment and detoxification programme. Not having heard any

evidence to the contrary I must accept the evidence of the drug treatment clinic and find on the balance of probabilities that the

mother has tampered with samples provided for drug testing. Regarding the father’s commitment to drug treatment and detoxification

Dr Q is rather less hopeful than SMacD, Dr. Q basing his opinion on the fact that the father’s drug addiction is of 10 years standing

and thus far he has not made such a significant progression. SMacD suggests that the father’s contemplation of this programme is in

itself positive and indicates a reasonable likelihood of success. Counsel for the father argues that the father has delayed his

attendance on the programme in order to develop his relationship with Child S through their access visits and bases her assessment of

a proportionate order on the period of treatment and stabilisation the father will need to successfully complete this process. It is

impossible to predict with any degree of certainty how successful the father will be in this endeavour.

22. Counsel for the father properly submits this court must consider Child S’s personal rights and that due regard must be given to the

rights of parents and the family also, while acknowledging that the welfare of child must be the first and paramount consideration.

Counsel has helpfully referred to relevant jurisprudence considering the personal rights of the father, both enumerated and

unenumerated in the Constitution, and argues that a care order until Child S reaches his/her majority interferes with the fathers right

to fair procedures as the CFA did not hold a substantial Child in Care Review when the father was identified as Child S’s father. Also

there was a 5 month delay in carrying out a DNA test and access was not allowed in that period. In addition the Father was not

advised to seek legal advice until and the April 2014 refusal of the District Court to order a parenting capacity assessment of him

constitutes is unfair and a breach of his constitutional rights. She asserts that a long term care order is not proportionate and not

based on any expert evidence before this court and suggests that the social worker in her evidence accepts that reunification with

the father has not been exhausted.

23. Counsel for the father asserts a reunification plan within 3 years is an achievable goal in this case. She has referred to the

consideration of proportionality by the High and Supreme Courts in Heaney v Ireland ([1994] 2 ILRM 420 and [1997] 1 ILRM 117) and

more recently by the Supreme Court in Meadows v The Minister for Justice [2010] IESC 3, and she has relied on European Court

Human Rights (ECtHR) jurisprudence regarding factors to be considered in deciding what constitutes a proportionate interference. She

has referred to Olssen v Sweden (1989) 11 EHRR 259 where the ECtHR emphasised that the ultimate aim when a child needs State

care should be reunification if possible with parents, a position she notes has been accepted in jurisdiction in SS v HSE [2007] IEHC

189. She also refers to Johannsen v Norway (1997) 23 EHRR 33 where the ECtHR emphasised the obligation to work towards

reunification – as swiftly as is possible while at the same time protecting the best interests of the child and K & T v Finland [2001] 2

FLR 707 where the ECtHR emphasised that removal of the child from the parents must not be done in such a way as to destroy the

natural bond and that there should not be a presumption in favour of permanent separation. She submits that the father intends to

attend detoxification and rehabilitation, that his current participation with counselling is fulsome and that the level of access offered

is not sufficient to promote reunification or to provide the father an opportunity to bond with Child S.

24. The CFA submits that the father has been afforded a proper opportunity to be involved in these proceedings and that a care

order to age eighteen is necessary to protect Child S’s welfare and that the father can seek to revoke the order at any time. The CFA

submits there are sufficient reasons to take Child S into care and notes that the father accepts interference is warranted and that he

requires time to address his own issues and that reasonable access is being offered to the father and the mother. The CFA argues

that the father was unknown to CFA until November 2013 but suggests the father must have been aware of the possibility of

paternity yet did not take earlier action to assert his rights. The CFA argues a care order to eighteen is proportionate in these

circumstances.

25. The GAL has helpfully provided extensive written legal submissions which may be summarised as stating that the principle to

reunification continues to be present in this case but that uncertainty regarding Child S’s care is not in the child’s interests at this

time and that the GAL and the CFA have properly taken the fathers views into account.

Decision

26. I am satisfied that the mother and the father have been afforded fair procedures in this case. The father’s identity was only made

known to the CFA subsequent to the Child in Care Review in November 2013 and he has participated in a Child in Care Review since

his confirmation as Child S’s father in April 2014. I am satisfied there was no undue delay in conducting the DNA test to confirm the

fathers paternity.

27. With regard to the constitutional and ECHR arguments made by counsel on behalf of the father and her arguments regarding

proportionality a legal analysis of these arguments has recently been conducted by the District Court in CFA v CG & anor [2014] IEDC

06. The facts of that case are similar enough to the facts in this case to enable me to rely on the analysis of my colleague in that

case. There the Court did not consider that a care order until each child attains the age of eighteen to be a proportionate or

necessary means of achieving the welfare of the children. There the court referred to the case of YC v the United Kingdom (2012) 55

E.H.R.R. 33 where the Court emphasised that ‘family ties may only be severed in very exceptional circumstances and … Everything

must be done to preserve personal relations and, where appropriate to ‘rebuild’ the family.’ In the CFA v CG & anor the court found no

prejudice to the interests of the children by making a care order of two years duration and noted that at the appropriate time before

the expiration of the care order the Court could consider the circumstances of the children and the parents and of its own motion

could extend the order should the circumstances of the case require.

28. I therefore see no compelling reason to depart from the conclusion reached by the Court in CFA v CG & anor and I am satisfied

that a care order of three years duration is the appropriate, proportionate and necessary order to grant in this case. I reach this

conclusion for the following reasons:

- Having considered the tender age of Child S;

- The fact that Child S has been cared for in a stable kinship placement which is most likely to continue during that

time:

- The commitment the father has shown to attending access and developing his relationship with Child S since April

2014;

- The motivation the father appears to be demonstrating to deal with his addiction and to become a caring figure to

Child S;

- The fact that the mother has in the past successfully managed her addiction and mental health difficulties;

- That should the parents individually fail to maintain their plans to address their addiction and other difficulties

within this time frame the Court has the discretion to extend this order until this child reaches his age of majority.

The care order shall continue until September 2017.

Access

29. I direct that access to the parents be in accordance with s. 37 of the Act of 1991.

Section 47 Directions

30. I direct this case to be re-entered before the Court in September 2016 for the Court to consider:

a) the progress made by the mother and the father in addressing their addiction difficulties;

b) the progress made by the mother in addressing her mental health difficulties;

c) the engagement by the mother and the father with the CFA and any other relevant support agencies;

d) if the parents have made sufficient progress in addressing their personal difficulties an assessment of each of the

parents capacity to parent Child S;

e) the particular needs or supports that Child S or his/her carers might require.

31. I further direct that this case be re-entered before the Court and on notice to the parents and the GAL in the event that:

a) the case is unallocated a social worker/fostering link worker for a period of 6 weeks;

b) if the CFA does not comply with the statutory care planning regulations;

c) if there is any planned or unplanned change of foster placement.

32. I will discharge the GAL with costs to be measured in default of agreement. The GAL is to reappointed 6 weeks in advance of the

court review in September 2016. If this GAL is no longer available the CFA is to bring an application to have a GAL appointed.

33. I reserve all applications for costs to the 17 September 2014.

34. I grant liberty to apply.

Colin Daly

District Court Judge

The Children Court