Care order granted for one year due to parental alcohol addiction and domestic violence despite evidentiary gaps.

[2014] IEDC 16

AN CHUIRT DUICHE THE DISTRICT COURT

TUSLA Child and Family Agency

-AND-

COS

first named Respondent

and

AJ

second named Respondent

CHILD CARE ACT, 1991- SECTION 18(1)

IN THE MATTER OF Child 1, Child 2 & Child 3, Children

31 October 2014

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

Agency (previously the Health Service Executive and now Tusla, the Child and Family Agency) for a care order in respect of each of

the children and the Court is informed that the order sought is an order until each child attains their majority. This application is

supported by the children’s Guardian Ad Litem.

2. At the hearing of this application the father was in attendance at Court and legally represented. The father consented to the

application and requested a full review of the children’s progress in care after one year.

3. At the hearing of this application the mother was not in attendance in Court. Her legal representative was present but was not

instructed by his client in this matter.

4. Notwithstanding the father’s consent to the making of a care order and the non-participation of the mother in the proceedings it is

incumbent upon the court to hear and assess the evidence to determine that the relevant threshold for interference with the family’s

various rights has been met and to examine the welfare considerations of the children.

BACKGROND

5. At the time of this hearing Child 1 was aged eleven years, Child 2 was aged nine years and Child 3 was aged eight years.

6. The family first came to the attention of the applicant in 2010 when anonymous referrals were received by the social work

department in April, June and August regarding concerns of the respondent parent’s abuse of alcohol and the children’s exposure to

domestic violence in the family home. The children’s school also referred generalised concerns to the Department and a particular

concern about the father’s alcohol use that same year. The concerns appeared to abate and the file was closed in December 2010.

7. The Applicant received another anonymous referral in March 2011 subsequent to an incident outside the family home at which the

children were present. The file was again closed in June 2011. A further referral was received by the applicant from the gardaí in

October 2011 and the case has been open since that time.

8. A child protection case conference was held in March 2012 around which time the parents removed the children to the UK. While in

the UK the mother and the children were made subjects of police protection further to an assault upon the mother by the father. The

parents returned to this jurisdiction and the children were made the subjects of interim care orders later in March 2012. They were

soon after placed in the voluntary care of the applicant until further interim care orders were granted in December 2013, which orders

have been extended from time to time since that date.

EVIDENCE

9. The predominant child protection concerns leading to and subsequent to the children’s reception into care may be summarised as

the parent’s long-standing alcohol addiction, various incidents of domestic violence between the parents and the children’s exposure

to the parent’s alcohol misuse and domestic violence. This is supported by the garda evidence who also expressed concerns about

the condition of the family home and the children’s lack of supervision.

10. The social work evidence inter alia described the supports offered to the parents to address their alcohol addiction and their

difficulties in managing their relationship. The evidence is that neither parent has addressed their difficulties to a sufficient degree for

the applicant to consider reunification of the children with either parent at this time.

11. The social work evidence cannot contradict the assertion that the parents are now separated and cannot contradict the

assertion that the mother has at this time remained sober for the past three months.

12. There is no evidence before the Court of any formal assessment of the parents capacity, or lack thereof, to parent the children,

nor is there evidence of the impact on the children of their experience in their parents care and neither is there any social work

evidence of the assessment of the risk to the children if they are to be returned to their parents care.

13. The guardian, who supports the applicant’s case, has given evidence of Child 1’s difficulties with managing his/her anger and

defiant behaviours. She agrees with the decision to refer Child 1 to a child and adolescent mental health service and suggests the

child requires psychological assessment of his/her psychological functioning and coping abilities. She notes some concern for Child 2’s

general ambivalence regarding his/her own feelings but questions the appropriateness of his referral to a child and adolescent mental

health service. She gave evidence that the concerns for Child 3’s general emotional wellbeing and behaviour have settled over time

and with support. She has given evidence of each of the children’s experience of harm while in their parents care and notes each has

‘experienced cumulative neglect as a result of living in unpredictable, stressful and chaotic circumstances with differing degrees of

parental responsiveness over a prolonged period of time. [The] parents limited personal and parenting resources did not extend itself

to supporting [the children’s] emotional and physical wellbeing over time.’. She has expressed to the Court the wishes of the children;

Child 1 wishes to remain in the care of his/her foster-carers, Child 2 does not wish to return home and Child 3 only wants to go home

if Child 1 and Child 2 want to too.

THRESHOLD CRITERIA FOR CARE ORDER

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

“18.—(1) Where, on the application of the Child and Family Agency with

respect to a child, the court is satisfied that—

(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.”

15. To satisfy the threshold set out in s.18(1)(a) and (b) the Agency must adduce evidence of the need to intervene by establishing,

as a matter of fact, actual harm to each child through assault, ill-treatment, neglect or sexual abuse, or harm to the child’s health,

development or welfare due to avoidable impairment or neglect in the past or at present. The standard of proof to be applied here is

the ordinary civil standard of proof, i.e. on the balance of probabilities. To satisfy the threshold set out in s.18(1)(c) the Agency must

adduce evidence to allow the court to assess the risk of future harm to the child. Shannon in ‘Child Law’, 2nd Ed., suggests the

threshold test to be applied here is not the ordinary civil standard of proof and suggests the standard to be applied should be that set

out in Re H and R (Child sexual abuse: Standard of proof) [1996] 1 FLR 80 where the House of Lords approved the standard set out in

Newham London Borough Council v AG [1993] 1 FLR 281. The Court of Appeal in Newham held that the threshold is met if, in the

Courts view, there is a real or substantial risk of significant harm in the future and suggested this should not be equated with the

balance of probabilities. Nichols LJ summarised the standard in RE H as follows:

”… it would be open to a court in appropriate circumstances to find that, although not satisfied the child is yet

suffering significant harm, on the basis of such facts as are proved there is a likelihood that he will do so in the

future.”

I agree the correct standard to be applied when considering s.18(1)(c) is that the Agency must adduce evidence sufficient for the

court to be satisfied to find a factual basis upon which to determine if there exists a real or substantial risk of future harm to the

child.

16. Section 18 (1) of the 1991 Act then requires the Agency to establish that the child requires care or protection which he is unlikely

to receive unless the court makes a care order in respect of the child. Where the Agency establishes intervention is necessary to

protect the interests of the child, and thus necessitates the making of a care order to address the harm or likely harm, s.18(2) of the

1991 Act requires the court to then consider the issue of the duration of the order and allows the court discretion to make an order

until the child attains his/her majority or ‘for such shorter period as the court may determine’. In exercising this discretion the court

must consider the appropriate duration of the care order on the evidence adduced and within the considerations of proportionality,

the rights framework of the Constitution and the European Convention on Human Rights (hereinafter referred to as ‘the ECHR’) and

relevant jurisprudence.

17. In considering the proportionate order to protect the child from harm the court must place the welfare of the child as the first and

paramount consideration in accordance with s.24 of the 1991 Act. 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. 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”.

18. In Lancashire County Council and Another v Barlow and Another [2000] 1 FLR 583 the House of Lords stated that the application

for a care order calls for immense caution and restraint and that Article 8 of the ECHR underlines this need for caution and restraint.

19. The issue to be determined by the court in this case is whether the threshold criteria set out in s.18(1)(b) and (c) of the 1991

Act have been met in respect of each of the children.

20. In this case the focus of the Agency’s evidence appears to be based upon the actions of the parents rather than on an objective

assessment of the welfare interests or potential future risk of harm to the children. I am satisfied on the basis of the Agency’s

evidence to find that:

(a) both parents suffer from an alcohol addiction of long standing;

(b) neither parent has as yet adequately addressed their alcohol addiction;

(c) there is a long standing history of domestic violence between the parents; and

(d) the children have been exposed to the parents alcohol addiction and incidents of domestic violence.

21. While these are findings of serious shortcomings in the parents conduct and duty to their children they cannot on their own

satisfy me that the children’s health, development or welfare has been avoidably impaired or neglected as set out in s.18(1)(b) of the

1991 Act. It may be that the parents conduct has had this affect upon the children, but I am not satisfied the Agency has provided

evidence of avoidable impairment or neglect and the Court cannot reach this conclusion in the absence of evidence demonstrating a

link between the parent’s failures and such consequences. It is upon the evidence of the guardian that I am satisfied to find that

Child 1, Child 2 and Child 3’s development and welfare have been avoidably impaired or neglected.

22. In considering the threshold in s.18(1)(c) of the 1991 Act, while the Agency has adduced evidence sufficient for me to make

findings regarding the parents conduct and duty as set out above, I cannot be satisfied that the Agency has established a factual

basis upon which to determine there is a real or substantial risk of future harm to the children.

23. Having found the threshold in s.18(1)(b) of the 1991 Act to have been reached I must now consider if the evidence is sufficient

to be satisfied that the children require care or protection they are unlikely to receive unless I make an order for their care otherwise

than in the care of their parents. Here I am satisfied to find that fact of the parent’s lack of meaningful engagement and sustained

progress in addressing their alcohol addictions and relationship difficulties makes it unlikely they can provide good enough care or

protection for the children.

24. In considering the appropriate and proportionate duration of the order for the care of the children I am satisfied the proper

approach to take is one of judicial restraint and one that interferes least with the parents and children’s right to family life. I am

satisfied therefore having considered on the one hand the deficits in the Agency’s evidence in this case, and on the other the

consent of the father to the order, the absence of the mother from participation in the proceedings and having considered the wishes

of the children and their welfare interests that the appropriate and proportionate duration of the care order in this case for each child

should be an order for one year.

25. I will reserve the respondents’ application for costs to January 2015.

26. I grant liberty to apply.

Colin Daly

District Court Judge

The Children Court