Court dismissed care order application, finding supervision order sufficient to prevent future harm to the child.

[2014] IEDC 14

AN CHUIRT DUICHE THE DISTRICT COURT

TUSLA: The Child and Family Agency

Applicant

-and-

NK

Respondent

CHILD CARE ACT, 1991- SECTION 18(1)

IN THE MATTER OF J, a Child

(LIKELIHOOD OF FUTURE HARM, RECEPTION INTO VOLUNARY CARE)

8 October 2014

1. This is an application pursuant to section 18 of the Child Care Act 1991 (hereinafter referred to as ‘the Act of 1991’) by the

Applicant Child and Family Agency (the Agency) (previously the Health Service Executive) for a care order in respect of the child and

the Court is informed that the order sought is an order until the child attains majority at eighteen years of age. This application is

supported by the Guardian Ad Litem.

BACKGROND

2. The child is three and a half years of age at this time and has been in the care of applicant for the last eighteen months.

3. The respondent mother is twenty two years of age and was herself in the care of the Agency since she was twelve years old. The

father has played no part in the child’s life to date. The mother was in receipt of after care services at the time her child was taken

into care.

CIRCUMSTANCES OF CHILD COMING INTO CARE

4. An Garda Síochána made a referral to the Agency in October 2012. They had cause to attend the mother’s home to intervene in a

domestic dispute at that time, the mother alleged that she had been assaulted by her then partner. The child was present during the

currency of the alleged assault. General fears were expressed that the mother might be finding it difficult to cope in the

circumstances.

5. Another referral was made to the Agency in January 2013 by the training centre attended by the mother. It was alleged that one

of the trainers at the centre was concerned that the mother might be under the influence of a substance. The mother was scheduled

to collect her child from crèche later that day and had indicated that she would be late in collecting the child as she planned to go to

a chemist to collect medication beforehand.

6. It is of relevance that the Guardian Ad Litem noted that the Agency files recorded that the mother was late by hours in collecting

her child; however reports filed in court indicated that the delay involved was one of fifteen minutes.

7. A duty social worker was waiting for the mother when she appeared at the crèche to collect the child. This duty social worker

satisfied himself that the mother was in a position to care for her child that evening. However he notified the ‘Out of Hours Service’

(OHS) that they should conduct a monitoring visit to the mother’s home that night. The duty social worker also notified An Garda

Síochána. An unannounced visit was made that evening; however the OHS and accompanying garda were unable to gain entry to the

apartment

8. It is conceded by the mother that social workers may have tried to visit that evening, however it was her evidence that she was

not aware of their desire to do so and that she never sought to exclude them but simply did not hear them. It was also submitted

that due to the configuration of the place where the apartment is located it is difficult to gain entry to the mother’s apartment block.

9. As the OHS failed to gain entry to conduct the monitoring visit they notified the social work team who formed the view that an

initial assessment was required in order to ensure the child was receiving adequate care and protection and in furtherance of their

statutory obligations under section 3 of the Act of 1991.

10. In the process of assessment the Agency became increasingly concerned about the mother’s presentation which included her lack

of consistent engagement and angry outbursts when she did engage. A view was formed that the mother was not coping and there

was a risk that it was impacting on her care of the child.

11. It is the position of the Agency that all appropriate interventions occurred before the child was received into care. Their child

protection concerns heightened in January 2013 and were further elevated in February 2013 when they could not gain entry to the

apartment. The child had missed crèche for two days in that period and so this baseline protective factor was absent.

VOLUNTARY CARE

12. At the end of February social workers endeavoured to contact the mother, they could not do so they therefore attended with An

Garda Síochána. The visit was acknowledged to be distressing but the child appeared to be quiet and clean. The mother was openly

hostile to the social workers who found her presentation and mood swings deeply concerning. When able to listen to social work

concerns the mother became distressed. After a further period the mother signed a voluntary reception into care form in respect of

the child. The child protection concerns cited included the child’s dry skin, quiet presentation and gait which appeared to the social

workers to be slanted.

13. After receiving the child into care it is the Agency’s position that they did everything possible to engage the mother in a

reunification process. Her path to reunification was made abundantly clear to her. It was contingent upon the mother’s compliance

with weekly urine-analysis, attending at counselling, attending anger management, engaging with the probation service, complying

fully with access and undertaking a parenting course. It was also recommended that the mother attend bereavement counselling. The

mother agreed to these requirements but her engagement was intermittent. She engaged in a parenting capacity assessment;

however following a strategy meeting in July 2013 her level of co-operation diminished. Due to concerns about ‘drift in care’ it was

decided to apply for an interim care order which order was granted on 25th November 2013. Extensions of that order were made by

consent on all occasions since that date.

14. It is the mother’s evidence that during this period she was very vulnerable. Her life was in turmoil. When she met her then partner

they were both in care and residing in the same place. He was not the father of her baby although she placed his name on the birth

certificate as father. By her own admission neither she nor this young man had robust coping skills and she did not have good

childhood experiences herself. Her child was born prematurely and she lived together with her then partner in his mother’s house

following the birth. She then secured an apartment. However after a period the relationship became strained and marred by domestic

violence. She ended the relationship. However he continued to harass her even when she was in a new relationship. She sought and

received the assistance of An Garda Síochána when this happened. After one such incident she phoned her new partner to seek his

support and shortly after that conversation her new partner was fatally assaulted. She found this time deeply traumatic. It was her

evidence that she did engage with the social workers and confided her internal conflicts with them. She considered herself to be a

good mother going through a bad time.

15. It is also the mother’s evidence that she signed the initial consent form at the end of February 2013 in circumstances whereby

two social workers and a member of An Garda Síochána called to her home. That she was given a choice between signing the consent

form for a short period or facing a court process for a care order. It was her evidence that the garda who was present advised her it

would be better for her to co-operate if she wanted to get her child back. She also signed consent forms subsequently up until

November 2013 but this was in the hope of getting her child returned to her. She also indicated that in that period her anger with the

social workers mounted and the process became elongated and her access to her child became more and more restricted.

THRESHOLD CRITERIA FOR CARE ORDER

16. Section 18 of the Act of 1991 sets out the criteria for taking a child into care.

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

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

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

and that the child requires care or protection which he is unlikely to receive unless the court makes an order.

17. Accordingly the Agency must evidentially establish the need to intervene by reason of actual harm through assault, ill-treatment,

neglect or sexual abuse or the likelihood of harm due to avoidable impairment or neglect through the past, at present or in the likely

future.

18. The second requirement of section 18 is for the Agency to establish that the child requires care or protection which he/she is

unlikely to receive unless this Court makes a care order in respect of the child. Accordingly where the Agency establishes the nature

of the intervention necessary to protect the interests of the child e.g. whether a care order is necessary or whether a supervision

order would suffice to address the harm or likely harm; then the issue is of the duration of the care order, if a care order is

established as necessary.

19. The Court must determine the proportionate order to protect the child from harm and must place the welfare of the child as the

first and paramount consideration in accordance with section 24 of the Act of 1991.

20. The Supreme Court in the case of North Western Health Board v W. (H.) [2001] IESC 90 clarifies that the State may only

interfere with a family unit to protect the rights of an individual member of the family if the threshold criteria of the Act of 1991 have

been met. The test to determine when there should be an intervention by the courts is established in light of the Constitution,

especially Article 40.3, Article 41, and Article 42.5.

21. Article 42.5 states:

“[i]n exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the

State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents,

but always with due regard for the natural and imprescriptible rights of the child”.

22. The issue to be determined by the Court in this case is whether the threshold criteria set out in section 18(1) of the Act of 1991

have been met in respect of this three and a half year old child.

23. In this case the Agency’s application is based on past emotional neglect of the child and on the likelihood of neglect if the child is

returned to the mother’s care.

24. It is the Agency’s case that the mother admitted difficulty with benzodiazepines in the past and also admitted occasional

cannabis use. She did not avail of counselling for this problem or counselling for bereavement. She failed to address her anger

management. She had sundry brushes with the law and was subject to probation. She found it hard to be consistent even in her

access schedule with her child and was consistently inconsistent in her engagement with social workers with periods of good

engagement which waned to poor engagement in a cyclical manner. She could not maintain a consistent level of improvement within

the child’s developmental time frame. Hence their application is for a care order until the child is eighteen years old.

25. The case on behalf of the mother is that the Agency has not reached the threshold and the evidence adduced does not support a

finding of emotional neglect. The consent to voluntary care was not a true consent and the likelihood of avoidable impairment or

neglect has not been established by the Agency on the balance of probabilities. In the alternative even if the Court finds that the

threshold has been met then the issue of proportionality is relevant, as is whether the issues can more properly be addressed by

making a supervision order.

EVIDENCE

26. I head evidence from:

(a) RB the Social Work Team Leader;

(b) SC the Social Worker currently allocated to the case;

(c) AL the Access Worker;

(d) The mother; and

(e) The Guardian Ad Litem.

27. The report of SH Senior Counselling Psychologist was admitted without formal proof. This report concludes that this mother is

cognitively bright with low self esteem. She has a difficulty with impulse control and anger management and finds it hard to accept

guidance. A reported diagnosis for attention deficit disorder at age fifteen was considered to be consistent with self reported current

obsessive compulsive disorder (OCD) like behaviours at times of stress which manifest in obsessive cleaning. Ongoing cognitive

behavioural therapy was recommended.

28. RB the social work team leader had overview of this case from the outset. She had occasion to meet with the mother in order to

impose boundaries to ensure the health and safety of the social work team. She identified the poor relationship between the mother

and various social workers as the insurmountable stumbling block in the way of reunification of mother and child. It was her evidence

that at one time she secured the intervention of a mediator to try and resolve this impasse between the mother and the social work

team. Her role was a managerial one and she overviewed the risk analysis undertaken in the case. She noted the mother’s honesty in

disclosing past history of benzodiazepine use and occasional cannabis use and noted her failure to engage with the drugs counsellor

or engage in regular urine-analysis to satisfy the concerns of the Agency.

29. RB identified the child protection concern as emotional neglect of the child due to the mother’s mental health which is

exacerbated by drug use. She also noted that the mother appeared to have a chaotic lifestyle and haphazard engagement with

services.

30. RB also emphasised the long periods between extensions of the interim care order agreed to by the mother which were focused on

establishing consistency in the mother’s engagement. Unfortunately for one reason or another consistency remained an elusive goal.

31. RB’s evidence was that a change of social work team made no discernable difference to the mother’s hostility or engagement with

services recommended to her but in the meantime the child thrived in care. The mother’s access with the child had to be reduced or

confined to ensure the child’s welfare in her professional opinion. When access did take place it was clear that there was mutual

affection between mother and child.

32. RB’s evidence was that the shift from ‘voluntary care’ to care under an interim care order was deemed necessary by her because

the mother was unable to accept the interventions offered by the Agency and there was a danger of ‘drift’ in care for the child. A

formal framework assessment was not undertaken at this point. The absence of such risk assessment was attributed to non-

engagement or inappropriate engagement by the mother with the Agency allocated social worker at that time.

33. RB’s professional opinion was that the child requires the provision of a long term placement and care plan to assure his/her health

development and welfare. She further noted that in the twenty months that the child has been in the care of the Agency there has

been no consistent change by the mother; although she has the capacity to change and understands what is expected to achieve

reunification.

34. On cross examination RB conceded that the mother has sought access in her home with the child on more than one occasion,

however this was ruled out and was not revisited as access as arranged by the Agency was deemed to be working well for the child.

She also conceded that on reception into care the child was medically examined and had no injury or impairment of any nature apart

from slightly dry skin which was easily treated. A query over speech delay was raised but a disorder has not been diagnosed and the

child is yet to be assessed by a Speech and Language Therapist.

35. SC became allocated as the social worker in this case in May 2014. The framework assessment commenced in June 2014 and was

completed in August 2014. SC gave evidence of her interactions with the mother in completing the parental capacity assessment. In

her view the mother engaged honestly and well throughout the assessment. However the mother had a tendency to aggression at

times and refused to come for the final session. SC’s evidence was that the mother informed her that she would not attend the final

session because she could not trust her reaction if she was told something she found hard to accept. She listed the positives that

the mother has to offer the child which included her love of her child and her capacity to engage when motivated to do so. Her

concerns mirrored those of RB however. SC also noted the mother’s social isolation and poor coping skills as challenges which had not

been addressed by her. It was her view that the mother could not maintain motivation to consistently engage in the tasks listed for

her to achieve reunification. Her anger and resentment impeded her implementing the recommendations set out in the child in care

review meeting in July 2014.

36. SC also had an ongoing concern regarding possible drug use by the mother and exposure to the risk of arrest for possession of

cannabis. It was concerning that she turned down services offered by the Agency to address any cannabis addiction. It was also her

view that the mother was not engaging well with her probation officer. SC accepted in cross examination that her assessment of a

‘chaotic’ lifestyle was based on the mother’s arrest on one occasion for possession of cannabis for personal use. She also conceded

that a possible assault charge against the mother may have been subsequently dismissed. SC was firm in her opinion that that the

mother could not manage her anger or see the need to do so even in the presence of the child although she did not witness the child

being exposed to this anger herself; this was recorded on the Agency files which she read.

37. Currently the mother has access with her child once per week for two hours supervised by an access worker in an access centre.

There were times when she missed access with her child and some of the visits may have been missed due to ill health of mother or

child. It was the professional view of both RB and SC that the threshold criteria of section 18(1) of the Act of 1991was met in this

case and that the child required the Court to make an order assuring him consistency into the future.

38. AL the access worker gave evidence that the mother did not accept direction easily and could lose her temper if told what to do

or not to do in access. On one occasion she recalled the mother attending directly from hospital with a catheter in her hand. She also

had to prompt the mother when the child was being toilet trained to remind her to take the child to the toilet. On at least one

occasion she jaywalked with the child and at times she could be distracted during access. On the other hand the child was always

happy to see her. The mother regularly asked to have access in her home with the child. Efforts were made to arrange outside visits

and these went well. Access was a good experience for the child.

39. The mother gave evidence as set out paragraphs 14 and 15. Her evidence was clear and coherent and she was present and

attentive throughout the hearing of this case. She maintained control of her emotions at all times as the evidence of the Agency was

heard. She acknowledged that her behaviour with social workers was unacceptable at times and she regretted that, in particular the

incident in which her foot went through glass in the social work office. She immediately accepted responsibility for that and paid for

the damage. She acknowledged her anger management problems especially with social workers and people in authority. She is

currently addressing that professionally.

40. Her explanation of her poor relationship with one GP was that she was engaging through that practice to have urine analysis and

did so for a period of fourteen weeks; however the social worker rejected those samples as the urine tests were unsupervised and

this was deeply upsetting for her chances of satisfying the Agency on this issue. This upset her relationship with the GP practice. She

then changed GP practice. She also acknowledged experiencing a seizure in June 2013 which may have been related to detoxification

from benzodiazepines according to her new GP. She also noted that her presentation at access with a catheter was because she was

in the A&E Department regarding a kidney infection but did not wish delays there to impede her access. She notified the Agency that

she would arrive slightly late for access because she preferred to have access; she was discharged but the doctor forgot to remove

the catheter and in her hurry to attend access it also slipped her attention.

41. She also gave evidence that she abstained from all substances during her pregnancy and has no current issues around

benzodiazepines. She stated that she was always honest around these issues with the Agency and openly acknowledged smoking

cannabis though she is not addicted to it.

42. She denied having a chaotic life style her accommodation has been stable form the outset. She asserted that she also engaged

consistently in anything to do with her child, her personal care during pregnancy, attending the public health nurse after the child was

born, she addressed the immunisation programme, etc.

43. She denied having a criminal conviction but acknowledged her arrest for cannabis possession for personal use. She also

acknowledged an incident outside her home investigated by An Garda Síochána resulting in a charge which was struck out.

44. Her evidence was that her constant requests for access in her home and outside the access centre were consistently rejected.

She said that some supports offered, such as a family support worker, were no longer available once her child was taken into care.

She denied that her child was ever exposed to aggressive behaviour by her towards others.

45. She denied that she had ever raised the issue of ‘voluntary care’ with the Agency and said that the social worker may have raised

it. She did not recall saying “just take him” but acknowledged that if put under pressure she may have said that, but if she did she did

not mean it. She said that she felt she had no choice but to sign the voluntary consent form when the social workers and garda

called to her in February 2013. She indicated that she would accept the need for anger management therapy (Cognitive Behavioural

Therapy), would attend counselling, would accept the need to engage constructively with the Agency and she would accept a

supervision order of the Court.

46. The Guardian Ad Litem for the child gave evidence of her encounters with the mother and child. The child is excited going to

access and the interaction she observed was positive and appropriate. The mother was affectionate and attentive to the child.

47. However she noted the significant concerns from her review of the Agency files. It was her professional view that even with

situations of intellectual capacity to parent the parent must be motivated to be consistent and have a capacity to engage in availing

of necessary supports. The main difficulties noted on the Agency files related to the mother’s mental health and anger management.

The history indicated that the mother was impulsive and did not have capacity to engage in supports or maintain consistency to

assure good enough parenting. The child is now nineteen months in care and is three and half years old. The child is currently in a

short term placement and will need a long term placement which implies a change of placement. A long term placement will determine

the child’s crèche location. The child will need to form an attachment to a new carer and will need the stability of a long terms

placement in this context.

48. It was the guardian’s professional opinion that there was no evidence that the mother had capacity to engage in services in the

medium or long term. So far six weeks appears to have been the longest period of adequate engagement according to the Agency

files. It was her professional opinion that the mother needs to focus on her own needs and has not been able to do so within the

developmental time frame of the child. She concluded that the risk to the child from inconsistency was simply too great unless his

long term needs were addressed though a full care order.

FACT-FINDING

49. The court must resolve the disputed relevant facts in this case before it can reach its conclusion on the issue it has to decide.

This exercise applies as much where the issue is whether an event may happen in the future as where the issue is whether an event

did or did not happen in the past.

50. What is common case is that this mother is twenty two years of age; that she was in the care of the Agency herself since she

was twelve years old; and that she is cognitively bright. It is also acknowledged that she has a poor relationship with social workers

in general and finds it hard to accept their guidance. Anger management/self regulation are conceded to be issues which she

struggles with but she now states that she sees the need to address them.

51. It is also common case that the mother loves her child and the child has a good relationship with her and that she cared for her

child without the assistance of the Agency until February 2013 when the child came into care.

52. From time to time access has been missed for one reason or another. It is also acknowledged that ongoing requests have been

made by the mother for some flexibility in access arrangements and these have not been facilitated.

53. It is also conceded that the mother had past issues with benzodiazepines though it appears to be conceded that this is not a

current concern.

54. It is conceded that the mother has used cannabis and is on probation for cannabis possession. What is in dispute is that the

mother has an addiction to cannabis. It has been acknowledge that counselling around cannabis and substance misuse is necessary

to ensure constructive parenting. No direct evidence has been adduced that the mother has an addiction to cannabis or any other

substance.

55. No evidence was adduced of an associated chaotic lifestyle normally associated with drug misuse. The mother has remained in the

same accommodation she occupied since before the child was received into care.

56. It is denied that the mother has mental health issues which impair her care of her child and there is no evidence in this regard

before the Court.

57. There is no evidence of emotional abuse before the Court. There is no evidence that the mother is or was consistently emotionally

unavailable to her child. It is admitted that she was finding it difficult to cope before her child was removed but she does not believe

that her difficulties justified that decision.

58. Professional evidence has been adduced of unwillingness or inability to engage appropriately and consistently with services

identified as necessary for her in order to assist her parenting.

59. The members of An Garda Síochána who attended at the mother’s apartment in January or February 2013 did not give evidence.

The probation officer, the member of the training centre, the relevant general medical practitioners or the social workers directly

involved with the mother in the periods in question were not called to give evidence in the case. RB was not present but had

oversight of the file in the period. The mother was present in court throughout to contest the case and also gave evidence and I

accept the mother’s evidence in relation to her account of the period in question.

61. The Guardian Ad Litem supports the application and filed reports which contain her reasoning, however her assessment of past

history and risk is based on what was written in Agency files some of which was called into question or not adduced evidentially in

this Court. The care plan produced for the child has not identified long term placement availability for the child.

DECISION

62. The relevant law to be applied is well established. In summary:

(a) The burden of proof lies on the Agency and the standard of proof is the on the balance of probabilities.

(b) The threshold to be established by the Agency is set out in section 18(1) of the Act of 1991.

63. The Court must determine whether the threshold has been reached in the case having regard to the evidence adduced and having

regard to the rights of the parents whether under the Constitution or otherwise and the rights of the child. The District Court must

apply the statutory criteria in accordance with the guidance given by the higher courts.

64. No direct evidence was adduced about the alternative available interventions which could have been employed to address the risk

assessed by the Agency in the context of the child’s vulnerability other than ‘voluntary care’.

65. The list of remediation tasks required of the mother by the Agency since the Reception into Care form was signed by her was

essentially fixed at the child protection case conference in March 2013. The identified issues have remained unaltered and largely

unaddressed. The risk analysis undertaken by the current allocated social worker is that these outstanding deficits coupled with the

mother’s inability to self regulate would inevitably result in risk to the child. She also formed the view that the mother only sees her

child’s needs through the lens of her own needs and this narrow perception also presents a risk of emotional abuse. In her professional

opinion this mother would not be able to meet the child’s needs consistently or on a long term basis and so the child’s health

development and welfare is likely to be avoidably impaired unless a Care Order is made by the Court.

66. I am not satisfied on the evidence adduced that the child has been ill treated, neglected or emotionally abused in the care of the

mother. I am not satisfied that the evidence adduced establishes that the child’s health, development or welfare has been or is being

avoidably impaired or neglected.

67. The remaining issue is to determine is whether the child’s health development or welfare is likely to be avoidably impaired or

neglected. Likelihood is based on probability short of certainty.

LIKELIHOOD OF FUTURE HARM

68. It is relevant that the risk of avoidable harm is stated to be due to the risk of emotional abuse of the child by the mother. This is

due to her history of poor engagement with the Agency social workers and difficulty in accepting their guidance. It is also related to

her acknowledged poor impulse control and apparent inability to harness her anger when provoked. It is also due to lack of insight into

the need for consistency in availing of services targeted to address identified therapy needs and use of cannabis. It is clear from the

evidence adduced and conceded that there is some risk but the level risk adduced through evidence has not satisfied me that the risk

is of such an order as to result in the likelihood of avoidable harm of this three and a half year old child unless a care order is made at

this time.

69. In this context it cannot be overlooked that the child came into voluntary care at the request of the mother as she was finding it

difficult to cope. A question has been raised whether this consent was in fact ‘voluntary’ or induced by the presence of An Garda

Síochána and social workers at a time when the mother was vulnerable and the risk assessment was due to apprehended emotional

harm.

70. In these difficult situations the response or intervention of the Agency must be proportionate to the feared harm. The removal of

her child to care appears to have set up a cycle of resentful partial compliance efforts by the mother in order to achieve reunification.

In essence the mother did not accept that her child needed to be in care notwithstanding her executing several “reception into care”

forms. It is unclear from the evidence and reports filed whether lesser forms of intervention were considered at that time. Thereafter

the mother consented to several extensions of the interim care order with the benefit of having legal advisors. The threshold for

intervention under section 17 of the Act of 1991 is of a lesser order than under section 18 as acknowledged in the case of W v Health

Service Executive [2014] IEHC 8 and the existence of an interim care order does not foreclose the task of the Court to be satisfied

that the threshold is met on an application for a care order.

71. Although the path to reunification was very clearly outlined for the mother by the Agency in March 2013. It is clear that the

mother’s engagement in this plan was patchy. At times her relationship with the Agency social workers and perseverance on the path

mapped out by the Agency for reunification deteriorated into unacceptable hostility when the Agency remained inflexible around these

requirements or around access venues.

72. I am satisfied on the evidence adduced including that of the mother that her life was complicated by her own childhood and

adolescent experiences and is not helped by some level of cannabis use. She is not remarkable in this habit which appears to be the

most common illicit substance used recreationally by young people of her generation. Of itself it is not a ground for losing a child to

care. Evidence has not been adduced that the substance misuse in question is entrenched or that the mother has a chaotic lifestyle

centred on drug misuse. It is common case that the mother is cognitively bright and now acknowledges the potential for harm through

cannabis use for failure to engage in counselling and therapy.

73. The mother has capacity to care for a child as evidence by her care of the child for the first eighteen months of life. She has

maintained stable housing. She is acknowledged to have a warm relationship with her child as observed by both the Guardian Ad Litem

and the access worker. The relationship which the child has formed with his/her temporary foster carer must end in any event and a

long term placement was un-sourced at the date of hearing. I am satisfied that the mother’s recognition of the need for consistent

positive engagement with social workers for the sake of her child, and to refrain from cannabis use and engage in counselling and

therapy for her own sake have come late in the day.

74. I am not satisfied however that the likelihood of avoidable impairment or neglect of the child’s health development and welfare has

been established evidentially on the balance of probabilities to satisfy me that a care order and in particular a care order until the

child is eighteen years old is necessary. Such a draconian step based solely on the evidence before the Court of the likelihood of

avoidable impairment or neglect would be disproportionate and unreasonable in law.

PROPORTIONALITY

75. I am satisfied that a one year supervision order will sufficiently address the child’s right to care and protection in this case.

76. I am also mindful that the Agency will make further application to this Court to ensure the rights of the child if the terms of the

supervision order are not adhered to or if future circumstances arise which come to their concern. Having regard to the requirements

of section 24 of the Act of 1991 to regard the welfare of the child as the first and paramount consideration and in so far as

practicable to give due consideration to their wishes I have noted the views and evidence of the Guardian ad Litem. I have also

carefully considering the rights and duties of the mother under the Constitution or otherwise.

Rosemary Horgan

District Court Judge