District Court grants permanent care order for infant due to mother's severe mental health risks and lack of reunification prospects.

[2014] IEDC 15

AN CHUIRT DUICHE The District Court

Child & Family Agency

Applicant

-AND-

CD

First Named Respondent

AND

PD

Second Named Respondent

Child Care Act 1991 – Section 18(1)

Care Order

In the matter of Child C, an infant

17 October 2014

1. This is an application by Tusla, the Child & Family Agency (the CFA) for a care order in respect of Child C pursuant to section 18 of

the Child Care Act 1991 (hereafter the Act of 1991). The CFA is seeking a care order in respect of Child C until he/she reaches his/her

age of majority at age eighteen years.

BACKGROUND

2. The background to the case may be summarised as follows. Child C’s mother, CD, is herself a young woman with a difficult and

troubled history. The mother's family have been known to the social work department since 2005 due to concerns for the welfare of

the mother (who was then a child) and her younger siblings. The mother was received into the care of the then Health Service

Executive (the HSE) for the first time in June 2005. She was later returned to her parents care but returned to the care of the HSE in

2008. The mother has had a significant number of placements while in care herself including high support residential care and

placement with a private service specialising in providing care to young people with an intellectual disability. The mother became

pregnant in 2012 as a result of what is described as an unstable relationship with Child C’s father, PD. Child C was born in April 2013

subsequent to a difficult and traumatic labour for the mother (who was herself in receipt of after care services at that time). Staff at

the hospital where Child C was born became concerned for the mother’s presentation and capacity to care for Child C. A pre-birth

case conference held in November 2012 concluded that the mother would be a highly vulnerable parent who would require significant

supports to parent Child C and a residential placement and support plan was devised. Subsequent to the birth of Child C the social

work department formed the view that the mother was not available or benefiting from the supports that had been identified for and

provided to her and applied to court for an emergency care order in respect of Child C. An emergency care order was granted for a

period of three days in April 2013. Three days later the CFA proceeded to apply for an interim care order which was granted and

which has been extended on occasions since that time and until the time of the hearing of this application.

EVIDENCE

3. During the course of this hearing I have heard evidence of:

· Dr. M, Consultant Paediatrician,

· Ms. N, Clinical Psychologist,

· Dr McA, Neuropsychologist,

· Mr. A, Social Worker,

· Ms. S, Social Worker,

· Ms T, Access Worker, and

· Ms. M, Access Worker.

I have also had regard to the report of Dr BL, Clinical Psychologist which has been admitted into evidence.

4. Dr M the Consultant Paediatrician gave evidence of the support and advice provided to the mother immediately subsequent to the

birth of Child C in the maternity hospital. His evidence is that the mother did not cooperate with and was aggressive to staff at the

hospital, did not take advice regarding Child C’s care and that he was concerned for the mother's ability to safely parent Child C.

5. Dr McA the Neuropsychologist gave evidence of his cognitive assessment on the mother. He has diagnosed the mother as suffering

from post-traumatic stress disorder, mild intellectual disability and concluded that her presentation and cognitive difficulties are as a

direct result of alcohol or drug-related neurodevelopmental disorder and exposure to severe trauma during her own childhood. He

suggests the mother’s own experience of inconsistent parenting and neglect as a child have compounded her organic difficulties and

may be a contributing factor to her presentation. He also noted she has personality traits indicative of a personality disorder and does

not have capacity to engage in meaningful therapy to address her difficulties.

6. Ms N the Clinical Psychologist gave evidence of her assessment of the feasibility of the mother being able to safely and

appropriately care for a child within the context of the 24-hour supervisory care placement offered to her. She concluded that the

mother was unwilling to take direction and guidance from professionals and that she lacks a frame of reference, knowledge or the

‘know how’ of being a good enough parent to do so. She notes that the mother has not yet demonstrated capacity to manage either

her own needs or the very predictable needs of her infant child. She also concluded that during the course of assessment the mother

did not demonstrate capacity to change her fixed thinking around her capacity to parent. She concludes that the level of parenting

competency Child C requires is not within the repertoire of behaviour, capacity or learning ability exhibited by the mother. She

concludes that it is the mothers own vulnerability and past trauma which has affected her current capacity to parent.

7. Dr BL’s, the Clinical Psychologist, report admitted into evidence her parenting capacity assessment of the father. She has identified

serious issues in respect of his conduct in close interpersonal relationships, notes the lack of information regarding his capacity to set

up and maintain a stable suitable home, she expresses concern in respect of his ability to positively facilitate the relationship between

Child C and his/her mother, she notes significant concerns regarding his ability to cooperate with social services and raises significant

questions in respect of his understanding of abuse issues and questions his ability to keep appropriate safeguards in place in respect

of family contacts. She recommends that while the father has the capacity to play a significant role in Child C’s life a conservative

approach should be adopted with regard to his assuming a major parenting role because of the concerns outlined.

8. Ms M the social work gave evidence that the mother is not consistent or reliable in attending access visits and appears to lack the

understanding of age-appropriate interaction with Child C. She gave evidence that the mother appears to struggle with basic

parenting techniques and is reluctant to take support or suggestions from staff to promote and encourage more positive interactions.

Ms T the social gave evidence that the mother has difficulty in accepting advice regarding Child C’s needs, appears to have limited

understanding of these needs and tends to base or prioritise her own needs ahead of her child’s. Access records show that the

mother has attended 23 out of a possible 45 visits in 2014 and has been late on 11 of the occasions on which she did attend. Access

records show that the father has attended 37 out of the possible 47 access visits in 2014 with all cancelled visits cancelled on notice

and other visits attended punctually. The access workers and social workers have given evidence that in their professional opinion the

mother’s lack of reliability or dependability with regard to access to her child is negatively impacting on their relationship.

9. Mr A the allocated social worker has given evidence that Child C has been placed in a CFA foster placement where he/she has

remained since the granting of the initial interim care order. His evidence is that the child has settled well with his/her foster carers, is

meeting his/her developmental milestones and is forming attachments to his/her foster carers. He stated that access between the

mother and Child C takes place twice weekly and notes that the quality of access appeared to improve when access was reduced

from seven days a week to the current level of two days per week. He notes that access between the mother and Child C has

deteriorated since February 2014. He also outlined the CFA’s intention to move Child C to a long-term foster placement in a planned

way if a care order is granted. The transition plan is before the Court. He gave evidence of his assessment of risk having considered

the recommendation of the psychological assessment of the mother’s capacity to parent and her neuropsychological assessment and

having considered the psychological assessment of the father’s capacity to parent which will be reassessed in 18 months time.

10. The conclusion of the psychologists and the social worker is that the mother fundamentally lacks the capacity to parent Child C

nor is she capable of acquiring the necessary skills to do so. The assessment of the father's capacity to parent has highlighted

serious concerns about his anger management, problem solving and coping strategies, consistency in terms of his wishes with regard

to Child C, stability in terms of his own accommodation and relationships, his own aggressive and violent behaviour and his

interpersonal functioning in close relationships.

11. I have also heard from the mother who opposes the CFA's application. She described her experience of caring for her siblings and

the trauma experienced by her while she was in the care of the HSE. She also described the shock and trauma she experienced giving

birth to Child C. She denies causing any harm to Child C during the short time they spent together at the maternity hospital. She

asked the Court to allow her the opportunity to parent her child and asks that the plan devised in the pre-birth case conference

allowing her to reside in her residential placement with her baby be reinstated and admitted she is currently residing in homeless

accommodation.

12. The father has chosen not to give direct evidence to the Court and supports the order sought by the CFA.

13. I have also heard from the court appointed Guardian ad Litem, Ms. G. She notes that Child C due to their very young age cannot

himself/herself articulate his/her wishes and feelings. The Guardian has formed her opinion on Child C’s welfare through review of the

social work files, her meetings with the parents, her observations of Child C and her interviews with Child C’s current foster carer. She

does not recommend that Child C be parented by either the mother or the father and recommends that Child C remains in the long-

term care of the CFA. The Guardian supports the CFA's plan to move Child C to a long term foster care placement. She notes the care

plan for Child C appears to be in order and supports the CFA's application for a care order until Child C reaches his/her age of majority.

The Guardian also notes the mother’s vulnerability and has expressed the hope that the mother will continue to be supported by the

CFA.

FINDINGS & ANALYSIS

14. The CFA submits that on the balance of probabilities the evidence is sufficient to satisfy the Court that the threshold criteria for a

care order as set out under section 18(1)(c) of the Act of 1991 has been reached. This section requires that the Court must be

satisfied that:

“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 under

this section …”.

15. On the basis of the evidence I am satisfied on the balance of probabilities to make the following findings:

a) the mother suffers from post-traumatic stress disorder and a mild intellectual disability and displays traits of a

personality disorder. These most likely result from alcohol or drug-related neurodevelopmental disorder and her

exposure to and experience of inconsistent parenting and neglect as a child which have compounded her organic

difficulties and are most likely to be a contributing factor to her current presentation.

b) the mother is not able to take direction and guidance from professionals and lacks a frame of reference,

knowledge or the ‘know how’ of being a good enough parent. She has not demonstrated a capacity to change her

fixed thinking around her capacity to parent and therefore an adequate level of parenting competency is not within

her capacity or ability nor is she likely to acquire this competency.

c) while the father has the capacity to play a significant role in Child C’s life the concerns raised contraindicate his

assuming a major parenting role for Child C at this time.

16. Having made these findings I am therefore satisfied to find that Child C’s health, development and welfare is likely to be avoidably

impaired or neglected if returned to either of his/her parents care and that he/she requires care or protection which he/she is

otherwise unlikely to receive unless a care order is made.

17. Having found that the threshold criteria has been reached I must now consider the question of the proportionate duration of the

care order. My colleague has clearly set out the legal framework within which this question must be considered in CFA v CG & anor

[2014] IEDC 06. She noted that the order of the court must go no further than is necessary to protect the welfare of the child and

emphasised the importance of due consideration to Article 8 of the European Convention of Human Rights (ECHR) and European Court

of Human Rights (ECtHR) jurisprudence which is helpful in conducting this exercise. She considered Johansen v Norway (1997) 23

EHRR 33 which emphasised the obligation to work towards reunification – as swiftly as is possible while at the same time protecting

the best interests of the child. However she noted the ECtHR emphasised that “[i]n carrying out this balancing exercise, the Court will

attach particular importance to the best interests of the child, which, depending on their nature and seriousness, may override those

of the parent”. She also considered K and T v Finland [2001] 2 FLR 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 – the State must consider the long term prospects – there should not

be a presumption in favour of permanent separation, and the case of Haas v Germany [2004] ECHR 142 - where the Court

emphasised the obligation of State Parties to carefully assess risk before intervention and whenever emergency protective measures

were deemed necessary to calibrate the consequences of intervention on all parties and ensure that measures taken were

proportionate to the risk.

16. Having heard the evidence adduced and made the findings set out above I consider that a proportionate order in this case is an

order placing Child C in the care of the CFA until she reaches his/her age of majority. In reaching this conclusion I have considered

that Child C’s tender age and vulnerability suggest it is appropriate to place her welfare interests above the rights of the parents. I

am also satisfied on the evidence there is not a real possibility of reunification of Child C with his/her mother given the child’s mothers

serious and significant diagnoses and prognosis. I am also satisfied the CFA has assessed the risk to Child C should he/she be returned

to his/her parents care to be so great as to warrant the making of an order for care for Child C until he/she reaches his/her age of

majority. I find this to be proportionate notwithstanding it may adversely impact Child C’s natural bond with his/her parents. It is clear

from the evidence before me that both parents dearly love their child, however I must make this order in Child C’s best interests.

ORDER & DIRECTIONS

17. I grant a care order for Child C which shall not expire until April 2031 when he/she reaches his/her age of majority.

18. I direct the CFA to facilitate reasonable access to the parents pursuant to s. 37 of the Act of 1991.

19. I direct pursuant to s. 47 of the Act of 1991 that this 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 a social worker or fostering link worker for a period of six weeks;

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

(c) Should the current foster placement break down; or should the CFA seek to change the placement for any

reason.

21. I further direct that should the case be re-entered the GAL is to be re-appointed six weeks before the date of re-entry. 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 s. 26 of the Act of

1991 for the purposes of having a GAL appointed.

22. I will list this matter for review on a date in October 2015.

23. After care planning is to commence for Child C within one month of his/her sixteenth birthday on a date in April 2029 and an After

Care Worker is to be allocated to him/her within one month of his/her seventeenth birthday in April 2030. The case to be listed for

After Care Review in April 2030.

24. I grant liberty to apply.

Colin Daly

District Court Judge

The Children Court