District Court declined care order but made one-year supervision order under Section 18 of Child Care Act 1991.

[2014] IEDC 20

THE DISTRICT COURT

Child and Family Agency

Applicant

-AND-

HL

Respondent

and

KL

Respondent

Section 18 of the Child Care Act 1991

In the matter of A and B, Children

28 November 2014.

1. A judgment was delivered by this Court in October 2014 following a lengthy hearing of these contested proceedings. On that date

the Court declined to make a care order but made a supervision order for 1 year from that date. The parties were informed that the

Court intended to deliver a written judgement as to the reasons for its decision and to refer to the relevant facts, legislation, legal

authorities and case law in this regard.

2. These proceedings were instituted by the Applicant seeking orders pursuant to section 18 of the Child Care Act 1991 (hereinafter

referred to as the ‘the Act of 1991’) committing the two children, the subject of these proceedings, into the care of the Child and

Family Agency until the children reached their 18th birthday. The children will be referred to as A and B and the respondents are the

mother and father of the two children. A Guardian ad Litem was appointed in these proceedings. She supported the application for a

care order. These proceedings were fully contested by the respondent parents.

Background

3. A was born in 2009. The Garda Síochána invoked section 12 of the Act of 1991 one day after A’s birth and the child was delivered

over to the Health Service Executive (hereinafter referred to as the ‘HSE’ and subsequently the Child and Family Agency). An

emergency care order was granted in respect of this child on that date and the child has been in the care of the Child and Family

Agency since that time. The child has remained in care pursuant to interim care orders which have been granted from time to time by

the District Court.

4. B was born in 2011. An emergency care order was granted in respect of this child within a couple of days if the child’s birth and the

child has been in the care of the Child and Family Agency since that time. The child has remained in care pursuant to interim care

orders which have been granted from time to time by the District Court. Both children have lived together with the same foster family

since they were placed in care.

5. The respondents, who were living in and habitually resident in the United Kingdom, travelled to Ireland in the summer of 2009 at a

time when the mother was at an advanced stage of pregnancy and was expecting A. The mother and father attended at a General

Hospital shortly after their arrival in Ireland stating that the mother was in labour. Documentation had been forwarded to that hospital

by social services in the United Kingdom which expressed child protection concerns in respect of the unborn child. This information

was forwarded to the local social work department and formed the basis of the decision taken at an Emergency Child Protection Case

Conference which was held the following day that an application would be made to Court for an emergency care order. The child was

delivered up into the custody of the HSE that same day by the Garda Síochána who had invoked section 12 of the Act of 1991 at the

hospital following consultation with the social work department and an emergency care order was granted on that date. There was

regular contact thereafter between the parents and the social work department with regular weekly supervised access. Interim care

orders were granted by the District Court throughout this period. The parents also agreed to and made themselves available for risk

assessments arranged by the HSE. These assessments were completed and reports, findings and recommendations were furnished to

the HSE in late 2010.

6. The local social work department was advised by the mother that she was pregnant with B in late 2010. A child protection

conference was held in spring 2011 to consider what action would be taken by the HSE. A decision was made to seek an emergency

care order. The respondents married in Spring 2011. B was born towards the end of Spring 2011. The child was not placed into care

immediately; this appears to be due to High Court proceedings which were instituted by the parents. An emergency care order was

granted by the District Court shortly after B was born 2011 and the child was taken into care on. The respondent parents have had

regular supervised weekly access with the two children since birth and from the evidence given to the Court such access has been

positive. The Guardian ad Litem was appointed by the District Court on an application from the HSE in Spring 2013 almost 4 years

after A and over 2 years after B came into care.

7. The Court commenced hearing the application by the Child and Family Agency for a care order pursuant to section 18 of the Act of

1991 on in early summer 2014 and heard oral evidence over 19 days. Evidence was heard from witnesses from the applicant’s social

work team and from a number of professional witnesses who had carried out assessments and had prepared reports on one or both of

the respondent parents. Evidence was not given by the respondents on legal advice. Evidence was also given by the Guardian ad

Litem. Following the completion of the applicant’s case and on the commencement of the evidence being given by the Guardian ad

Litem an application was made to the Court by the respondents to exclude evidence relating to historic documentation received from

the United Kingdom where witnesses were not called to prove this documentation. The Court gave a ruling where it found in the light

of the legal authorities that in all the circumstances it could attach little or no weight to the expert evidence in the case relating to

historic documentation from the United Kingdome save the court orders dated late 2006 in respect of 2 children of the mother. The

first named respondent, in respect of which the second named respondent was the father of one of those children which had been

accepted by the respondents. The Court’s attention was drawn to the written judgment of a Judge of the District Court in England

dated later 2006 and approved in spring 2007 in relation to these 2 children when care and placement orders were made by the Court

in respect of the respondent mother and a parental responsibility order in respect of the respondent father. Permission had been

granted by the District Court Judge of the Family Division of England and Wales in late 2009 for the local authority to disclose the

case papers in these care and placement proceedings relating to the 2 children to the Irish Court, all parties and the respondent

father. The Court ruled that it was declining to recognise this written judgment as no decision had been made in relation to this

judgment in accordance with the provisions of S.I. No. 112 of 2005 European Communities (Judgments in Matrimonial Matters and

Matters of Parental Responsibility) Regulations 2005, having noted the respondents objection in this regard. The Court has disregarded

the historic United Kingdom documentation and the contents of the judgment of the District Court in England in making its decision in

this case. However the Court was in a position to have regard to admissions made or information given by the respondents to the

social workers or other professional witnesses who carried out assessments on the respondents.

8. From the evidence given in this case the Court finds the following facts relevant to its final decision based on the evidence given

to the Court;

The Respondent mother had two children when she lived in the UK, one in respect of which the second named respondent was the

father. While the mother was pregnant with her second child, following an examination by two consultants after the parents had

brought the child to the hospital, the family were informed of findings which indicated that the child had been sexually abused. This

child was subsequently removed into foster care and the respondents became the subject matter of an investigation by the police.

The respondents strenuously denied that they had abused their child and implicated a third party who had been minding the child

during the latter stages of the respondent mother’s pregnancy when she had suffered complications. Following the birth of the second

child, this child was immediately taken into care and placed with a foster family with his/her sibling. The respondent mother had

regular supervised access with her children after they had been taken into care. The Court viewed a video recording of the final

access of the mother with her two children and it is clear that this access was positive and there was an excellent interaction

between the mother and her children. No perpetrator of the sexual abuse of the child has ever been identified and no person has ever

been charged. Ultimately, after a hearing, where the mother was legally represented, the District Court in England made a care order

in respect of both children who were placed in care and adoption. The respondents did not appeal the order. Where the respondents

did not give evidence the Court is not in a position to make any finding as to the reasons. However failure to appeal does not

constitute a determining factor in this case.

9. Social services in the UK became aware of the respondent mother’s pregnancy with A in Summer 2009 and convened a meeting

with both respondents. The respondents were told that the child would be taken into care at birth. A Member of Parliament (MP)

advised them to leave the country in advance of the birth and it appears that as a result of this advice the respondents came to

Ireland in mid summer 2009.

10. Having heard detailed legal submissions during the course of this case the Court deems that it is appropriate to set out what it

believes are the legal principles which apply in childcare cases which formed the legal basis for its final determination in this case. The

Court is grateful to the legal representatives of the parties and the Guardian ad Litem for their comprehensive legal submissions in this

regard.

The Law

11. The Applicants made their application for a care order under the provisions of section 18(1) (C) of the Act of 1991.

Section 18(1) of the Act of 1991 provides:

“(1) Where, on the application of the Child and Family Agency with respect to a child who resides or is found in its

area, the court is satisfied that

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

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

this section, the court may make an order (in this Act referred to as a “care order”) in respect of the child.”

12. In K.A. v Health Service Executive [2012] 1 IR 794 O’Malley J. states:

“The terms of the Act require that, in making a full care order, the District Judge must be satisfied that a specified

factual event or set of events has happened, is happening or is likely to happen and that the child, in brief: needs

the protection of the order.”

13. The manner in which the Act of 1991 is to be interpreted was explored in the case of Western Health Board v K.M. [2002] 2 IR

493 by McGuinness J. when she stated as follows:

“I have already very briefly set out the history of the enactment of the Child Care Act, 1991. There can be no

doubt that it is a remedial social statute, and was seen to be such by all who were affected by its provisions. Its

social and remedial importance was accepted by all, including this Court and more particularly the District Court,

which for many years had striven to operate the provisions of the Children Act, 1908, in a way which made sense in

the latter part of the twentieth century. This is borne out in the decisions relied upon by counsel for the Applicant

in the cases of The Director of Public Prosecutions (Houlihan) v. P.G. [1996] 1 I.R. 281 and M.F. v. Superintendent,

Ballymun Garda Station [1991] 1 I.R. 189. I would therefore accept the submission of the respondent that the

construction of the Act of 1991, as a whole, should be approached in a purposive manner and that the Act, as

stated by Walsh J., should be construed as widely and liberally as fairly can be done.”

14. Therefore the Courts in interpreting the Act as a whole must do so in a purposive manner construed as widely and liberally and as

fairly as can be done. However in doing so regard must be had to the relevant constitutional rights of the child and the parties.

15. Section 24 of the Act of 1991 states:

“In any proceedings before a Court under the Act in relation to the care and protection of a child, the Court, having

regard to the rights and duties of parents, whether under the Constitution or otherwise, shall-

(a) regard the welfare of the child as the first and paramount consideration, and

(b) in so far as is practicable, give due consideration, having regard to his age and understanding, to

the wishes of the child.“

16. “Welfare” is not defined in the Act of 1991. Section 3 of the Guardianship of Infants Act 1964 is a similar provision and in section

2 of that Act the welfare of the child is defined as comprising “the religious, moral, intellectual, physical and social welfare of the

child”. Article 42.1 of the Constitution of Ireland refers to “the inalienable right and duty of parents to provide, according to their

means, for the religious and moral, intellectual, physical and social education of their children.” References to welfare in the Act of

1991 are to be construed in these terms.

17. Denham J. (as she then was) in North Western Health Board v HW [2001] 3 IR 622 at p. 718 said:

“The constitutional principles applicable are those to be found in Articles 40.1, 41 and 42.5. These should be

construed harmoniously. Thus, the child has personal rights: Article 40.1. The State has a duty to respect, and, as

far as practicable, by its laws to defend and vindicate these rights. The State has a duty to vindicate the life and

person of the child. Thus, the Guardianship of Infants Act, 1964 and the Child Care Act, 1991, advanced the

concept of the welfare of the child as the first and paramount consideration.

However, the legislation and the rights of the child have to be construed in accordance with Article 41 which places

the family at the centre of the child’s life and as the core unit of society. The language of Article 41 (set out

previously) is clear and strong. The family is the fundamental unit group of society and the State (which includes

the Courts) guarantees to protect the family in its constitution and authority.”

18. In the case of S v S [1976] 110 ILTR 57 Walsh J. stated:

‘All the ingredients which the Act stipulates are to be considered globally.

This is not to be decided by the simple method of totting up the marks which may be awarded under each of the

five headings. It is the totality of the picture presented which must be considered … the word ‘welfare’ must be

taken in its widest sense”

19. In his judgment in G. v An Bord Uchtála [1980] IR 32 Walsh J. said:

“The word “paramount” by itself is not by any means an indication of exclusivity; no doubt if the Oireachtas had

intended the welfare of the child to be the sole consideration it would have said so. The use of the word

“paramount” certainly indicates that the welfare of the child is to be the superior or the most important

consideration, in so far as it can be, having regard to the law or the provisions of the Constitution applicable to any

given case.”

20. The House of Lords in the case of J. and Another v C. and Another [1970] A.C. 668 per Lord Mc Dermott at 770-771 explained the

meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration” thus:

“… it seems to me that they must mean more than that the child’s welfare is to be treated as the top item on a list

of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts,

relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and

weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has

now to be understood. That is the first consideration because it is of first importance and the paramount

consideration because it rules upon or determines the course be followed.”

21. The nature of childcare proceedings has been the subject of some discussion by the Superior Courts. In K.A. v Health Service

Executive O’Malley J stated:

“I accept that child care cases are not entirely analogous to other litigation; that the judge's role is more

inquisitorial than usual and that there is a need to preserve a degree of flexibility in order to deal with exceptional

circumstances. However, the normal rules are that courts act on evidence and that parties applying for an order

must establish grounds for the making of the order. I see no reason why, if the rights of the applicant and her

children are to be accorded proper respect, these rules should not be considered applicable in cases under the Act

of 1991.”

22. The nature of these type of proceedings was given comprehensive consideration by the Supreme Court in Southern Health Board

v C.H. [1996] 1 IR 219.

“The Court thinks it important in the first instance to assign a description to the proceedings in issue. They are in

essence an inquiry as to what is best to be done for the child in the particular circumstances pertaining. The Court

holds that the nature of these proceedings is similar to proceedings where a court is exercising its wardship

jurisdiction. Section 3 of the Guardianship of Infants Act, 1964, provides that where in any proceedings before any

court the custody, guardianship or upbringing of an infant is in question, the court in deciding that question shall

regard the welfare of the infant as the first and paramount consideration. The Act defines welfare as comprising of

the "religious and moral, intellectual, physical and social welfare of the infant. The Act of 1964, itself a statutory

statement of what is inherent in the Constitution, reinforces the common law position that the court is entrusted

with the responsibility of the child's welfare. This is of the utmost importance. At the outset it must be emphasised

that the proceedings are not of a criminal nature, nor are they a lis inter-partes. Here, the Court must undertake an

investigation of what is in the best interests of the child: whether to be placed with the father or the Board.

We adopt what Lord Devlin said in the course of his speech in In re K. (Infants) [1965] A.C. 201 at p. 240, when he

marked the dichotomy between the role of a judge as arbitrator and the role of a judge as a protector of persons

when he said:—

"Where the judge sits as an arbiter between two parties, he need consider only what they put before

him. If one or other omits something material and suffers from the omission, he must blame himself and

not the judge. Where the judge sits purely as an arbiter and relies on the parties for his information, the

parties have a correlative right that he should act only on information which they have had the

opportunity of testing. Where the judge is not sitting purely, or even primarily, as an arbiter but is

charged with the paramount duty of protecting the interests of one outside the conflict, a rule that is

designed for just arbitrament cannot in all circumstances prevail."

So, the first point to note about this case is that the judge is in essence required to inquire as to what is in the

best interests of the child. It is true, of course, that the rights of the father must be safeguarded, as far as

practicable, consistent with discharging that primary obligation. But when the consequences of any encroachment

on the respective rights is considered, it is easy to comprehend that the child's welfare must always be of far

graver concern to the Court. We must, as judges, always harken to the constitutional command which mandates,

as prime consideration, the interests of the child in any legal proceedings.” (original emphasis)

23. In the recent case of F.H. v Judge Staunton [2013] IEHC 533 at p. 9 Hogan J. stated:

“The entire jurisdiction to take children into care derives from Article 42.5 of the Constitution which provides that:

“In 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.”

It is true that the right and duty of the parents to provide for the education and upbringing of their children is

described by Article 42.1 as “inalienable”. Yet it is also obvious from the express terms of Article 42.5 that these

parental rights can be lost in the case of objective failure on the part of the parents themselves. While terms such

as “inalienable”, “imprescriptible” and “inviolable” are liberally employed throughout the Fundamental Rights

provisions of the Constitution, it must be recalled that these terms draw their provenance from the use of the very

same or similar terminology in the continental constitutions of the 19th and 20th century. Neither the drafters of

those constitutions nor the drafters of our Constitution intended that terms such as “inalienable” or “inviolable”

should be read absolutely literally: see e.g., by analogy my own comments to this effect in Wicklow County Council

v. Fortune (No.1) [2013] IEHC 406. These terms were rather used to signify and to emphasise the importance of

these rights and to convey their importance so that, as I put it (in the context of the meaning of the word

“inviolability” in Article 40.5 in Fortune) such rights would enjoy “the highest possible level of legal protection which

might realistically be afforded in a modern society”. Rather these terms were used to signify and to emphasise the

importance of these rights and to convey their importance. The use of language of this kind further conveys an

important signal as how necessary it was considered that these rights should be safeguarded against

encroachment.”

24. The Supreme Court set out the test to be applied to cases involving the welfare of children in In re J.H., an infant [1985] ILRM

302 per Finlay C.J. as follows:

“… s. 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the

child, which is defined in s. 2 of the Act in terms identical to those contained in Article 42, s. 1, is to be found

within the family, unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be

achieved, or unless the Court is satisfied that the evidence establishes an exceptional case where the parents have

failed to provide education for the child and to continue to fail to provide education for the child for moral or

physical reasons”

25. In the same case McCarthy J. speaking about the phrase “compelling reasons” said:

“The key issue is whether the Court is satisfied on the evidence that there are compelling reasons why the welfare

of the child, as defined, cannot be achieved within the family, in other words that there are compelling reasons why

the child should be in custody other than that of her parents. It may seem inappropriate in a case so inevitably

distressing as this, to speak of the burden of proof; I would merely wish to emphasise that the “compelling reason

or reasons” must, in my view be clearly established.”

26. In N v Health Service Executive Hardiman J. [2006] 4 I.R. 374 at p. 513 stated:

“The phrase “compelling reasons” why the child’s welfare cannot be secured in the family, plainly connotes that, to

meet the test, there must be found coercive reasons to believe that the proper nurturing of the child in the natural

family is not possible. The phrase therefore has a natural and inescapable significance for the type of evidence

required and the standard it must meet.” (original emphasis)

27. The test was more recently applied in K.A. v Health Service Executive where O’Malley J. states:

“In considering the interpretation of the s. 3 of the Guardianship of Infants Act 1964, in the case of In re J.H. (inf.),

Finlay C.J. held that, having regard to the provisions of Article 42 of the Constitution, that Act must be construed

as involving a constitutional presumption that the welfare of the child is to be found within the family unless the

court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the

court is satisfied that the evidence establishes an exceptional case as envisaged by Article 42.5. This decision was

followed by the Court in N. v. Health Service Executive [2006] IESC 60, [2006] 4 I.R. 374, a case concerning the

position of a child who had initially been placed for adoption by unmarried parents. Her parents later married before

the adoption had been finalised and sought custody of her. A unanimous Supreme Court applied the "compelling

reasons" test in favour of the parents.

There is no contention in the instant case that this principle does not apply to the [Child Care Act 1991]. The

Constitution envisages the family unit as the centre of the child's life. The Act of 1991 sets out a number of

specified factual events or circumstances which will justify what is, even in the case of the interim order,

undoubtedly a major interference with that model and with the normal rights of the family unit. The terms of the Act

of 1991 require that, in making a full care order, the District Judge must be satisfied that a specified factual event

or set of events has happened, is happening or is likely to happen and that the child, in brief, needs the protection

of the order. An interim order can be made where the fudge is satisfied that there is reasonable cause to believe

that any of the specified circumstances exist or have existed and that the order is necessary for the protection of

the child pending the determination of the application for the care order.” (original emphasis)

28. Therefore one can find from the legal authorities that in order for the Court to exercise its jurisdiction to take the child into care

under the provisions of the Act of 1991 the Court must be satisfied on the evidence that there are compelling reasons that the

welfare of the child cannot be found within the family or unless the Court is satisfied that the evidence establishes an exceptional

case where the parents have failed to provide education for the child and to continue to fail to provide education for the child for

moral or physical reasons.

29. The child has certain personal constitutional rights which must be vindicated by the State under the provisions of the

Constitution. O’Higgins C.J. stated in G. v An Bord Uchtála [1980] IR 32 at p.56;

“Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity

of working and of realising his or her full personality and dignity as a human being. These rights of the child (and

others which I have not enumerated) must equally be protected and vindicated by the State. In exceptional cases

the State, under the provisions of Article 42, s. 5, of the Constitution, is given the duty, as guardian of the common

good, to provide for a child born into a family where the parents fail in their duty towards that child for physical or

moral reasons. In the same way, in special circumstances the State may have an equal obligation in relation to a

child born outside the family to protect that child, even against its mother, if her natural rights are used in such a

way as to endanger the health or life of the child or to deprive him of his rights. In my view this obligation stems

from the provisions of Article 40, s. 3, of the Constitution.”

30. The Supreme Court said in the case of The Adoption (No 2) Bill 1987 [1989] IR 656 at p. 663 stated:

“Article 42, s. 5 of the Constitution should not, in the view of the Court, be construed as a being confined, in its

reference to the duty of parents towards their children, to the duty of providing education for them. In the

exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means

shall endeavour to supply the place of parents. This must necessarily involve supplying not only the parental duty

to educate but also the parental duty to cater for the other personal rights of the child.

Article 42, s. 5 does not in any way mean that the children whose parents have failed in their duty to them become

the children of the State or that they are to be disposed of as such.

The State would, in any event, by virtue of Article 40, s. 3 of the Constitution be obliged, as far as is practicable,

to vindicate the personal rights of the child whose parents have failed in their duty to it.

… The guarantees afforded to the institution of the family by the Constitution, with their consequent benefit to the

children of a family, should not be construed so that upon the failure of that benefit it cannot be replaced where

the circumstances demand it, by incorporation of the child into an alternative family.”

31. Denham J. (as she then was) in North Western Health Board v HW [2001] 3 IR 622 at p. 719 said:

“Article 42.5 envisages, in exceptional cases, where parents fail in their duty to the child, that the State as

guardian of the common good shall by appropriate means endeavour to supply the place of the parents, but this is

subject to the rights of the child. It is clear that under Article 42.5 the State is the default parent and not the

super parent.

The Constitution clearly envisages the common good requiring the State to take the place of parents where they

for physical or moral reasons fail in their duty towards their children. When taking this approach, due regard must be

given to the right of the child to its family. However, the child at all times retains his or her personal rights also.”

32. In F.H. v Judge Staunton [2013] IEHC 533 at p. 13 Hogan J. states:

“There is no doubt but that the loss of parental rights – whether on a temporary or permanent basis – is, however,

a serious matter which the organs of the State should not lightly undertake: see, e.g., the comments to this effect

of Hardiman J. in N. v. Health Service Executive [2006] IESC 60. Yet Article 42.5 envisages that there will be cases

where this step is objectively necessary to safeguard the child’s own constitutional rights. As O’Flaherty J. observed

in Southern Health Board v. CH [1996] 1 I.R. 219, 238:

“…the child’s welfare must always be of far graver concern to the Court. We must, as judges, hearken

to the constitutional command which mandates, as prime consideration, the interests of the child in any

legal proceedings.”

It is accordingly impossible to catalogue ex ante the precise nature of the parental failure which might justify the

removal of the child from the custody of its parents. It is sufficient to say that while weighty reasons for this step

must always be established, yet as O’Flaherty J. observed in CH, such a step must also be taken in such

circumstances of failure where it is clear that the best interests of the child so require.

Thus, physical abuse and sexual abuse of children naturally amount to an open attack on the “person” of the child

within the meaning of Article 40.3.2 of the Constitution. The right to the protection of the person in Article 40.3.2 is

clearly one of the “natural and imprescriptible rights of the child” for the purposes of Article 42.5. Such an

infringement of these rights would unquestionably constitute “failure” in the Article 42.5 sense on the part of the

parent concerned.”

The European Convention on Human Rights

33. The Court must have regard to the European Convention on Human Rights in its decisions.

34. Article 8 of the European Convention on Human Rights provides:-

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic society in the interests of national security, public safety

or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or

morals, or for the protection of the rights and freedoms of others.

35. The Convention has been considered by the European Court of Human Rights (hereinafter the ECtHR) in relation to child care

cases on a number of occasions. It is clear that a margin of appreciation is left to the national courts in the interpretation of Article

8. 36. In Olsson v. Sweden (No. 1) (Application no. 10465/83) 24th March 1988 the ECtHR said,

“According to the Court’s established case-law, the notion of necessity implies that the interference corresponds to

a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued; in determining

whether an interference is "necessary in a democratic society", the Court will take into account that a margin of

appreciation is left to the Contracting States (see, amongst many authorities, the above-mentioned W v. the

United Kingdom judgment, Series A no. 121, p. 27, § 60 (b) and (d)).”

37. In K. AND T. v. FINLAND (Application no. 25702/94) 12th July 2001 the ECtHR at p. 155 held:

“The margin of appreciation so to be accorded to the competent national authorities will vary in the light of the

nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of

protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on

the other hand, the aim to reunite the family as soon as circumstances permit. When a considerable period of time

has passed since the child was originally taken into public care, the interest of a child not to have his or her de

facto family situation changed again may override the interests of the parents to have their family reunited. The

Court thus recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a

child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions

placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective

protection of the right of parents and children to respect for their family life. Such further limitations entail the

danger that the family relations between the parents and a young child are effectively curtailed”.

38. However the extent to which the Convention is binding on this State was considered by the Supreme Court in the McD. v L. &

anor [2009] IESC 81 where Murray C.J. stated:

“Thus contracting states may in principle, so far as the effect of the Convention at national level is concerned,

ignore the decisions of the Court. They do of course have an express obligation under the Convention itself to abide

by any judgment of the Court (article 46.1). Fortunately its decisions are generally respected and executed.”

39. With regard to the decision in K. and T. v Finland the time a child has spent in care and the uncertain psychological effects on a

child would not be a determining factor in light of the test which the Supreme Court set out in re J.H., an Infant .

40. Kelly in “The Irish Constitution” 4th edition at page 1925 states with reference to In re J.H., an infant. ”[b]y implication, an

appreciable but uncertain risk of long-term psychological harm to the child would not appear to be a “compelling reason” for rebutting

the presumption that the child’s welfare is best served within the marital family”.

The Jurisdiction of the District Court

41. The jurisdiction of the District Court in child care proceedings derives from section 28 of the Act of 1991 which states:

“(1) The District Court and the Circuit Court on appeal from the District Court shall have jurisdiction to hear and

determine proceedings under Part III, IV or VI.

(2) Proceedings under Part III, IV or VI may be brought, heard and determined before and by a justice of the

district Court for the time being assigned to the District Court district where the child resides or is for the time

being.”

42. In Coughlan V District Judge Patwell [1993] 1 I.R. 31 Denham J. (as she then was) said:

“What is at issue in this case is the application of the Constitution and constitutionally acceptable standards of

fairness and justice. In The People v. Lynch [1982] I.R. 64 at p. 84 Walsh J. stated:

"It is important to recall that the District Court and the Circuit Court, which deal with the great bulk of

criminal trials in the State, are Courts set up under the Constitution. Like their brethren in the Supreme

Court and in the High Court, each judge of the Circuit and of the District Court is obliged by Article 34,

s. 5, of the Constitution to make and subscribe in open Court to the solemn and sincere promise that he

will uphold the Constitution and the laws. Therefore, the judges of the District Court and judges of the

Circuit Court are not dispensed from, or expected to overlook, their constitutional obligation to uphold

the Constitution in the discharge of their constitutional and legal function of administering justice. It

would be most incongruous if they were to apply a general test of basic fairness because the

Constitution requires it, and not to rule on questions of the admissibility of evidence obtained as a result

of breaches of the constitutional rights of the accused. The judicial obligation is to uphold all of the

Constitution."

Thus while the District Court is a court of limited statutory power it remains at all times a court which must protect the individual

constitutional rights of the person. In Ellis v. O'Dea [1989] I.R. 530 at p. 537 Walsh J. stated: there

"What is invoked in the present case is the undoubted residual jurisdiction of the District Court to protect the

constitutional rights of any person appearing before it. All persons appearing before the Courts of Ireland are

entitled to protection against all unfair or unjust procedures or practices."

The District Court has a duty to act constitutionally and to act in such a manner as to preserve an individual's constitutional rights.”

43. The principles enunciated by Denham J. apply equally to the District Court dealing with cases under the of Act 1991 in requiring a

District Court Judge to preserve an individual’s Constitutional Rights and “to uphold the Constitution and the laws.”

44. Having set out the legal and Constitutional principles which the Court believes are relevant in considering an application under

Section 18 of the Child Care Act 1991 the Court will now apply these principles to explain how it has come to its decision in this case.

45. The Child and Family Agency, the Applicant in these proceedings, has make the case that based on the evidence presented to

the Court that the provisions of section 18(1) (C ) that “the child’s health, development or welfare is likely to be avoidably impaired or

neglected” have been satisfied. This is the third ground on which an application for a care order can be made under the Act of 1991.

46. Paul Ward in his book “Child Care Acts Annotated and Consolidated (3rd edition) at Page 65 states:

“The third ground upon which a care order may be granted is on the basis that the child’s health, development or

welfare is likely to be avoidably impaired or neglected. While the previous ground requires that there is or has been

neglect or impairment to the child’s health, development or welfare, and that there is evidence to this extent, this

ground operates on the premise that there has not yet been, or there is insufficient proof that there has been,

neglect or impairment but that it is likely in the future. Of the three grounds this is the most difficult to satisfy in

terms of proof.”

47. In this case both children have been in the care of the Applicant almost immediately from their birth. As a result it would not be

possible for the Child and Family Agency, to satisfy the court that the children had been assaulted, ill treated, neglected or sexually

abused or that the child’s health development or welfare has been or is being avoidably impaired or neglected. Further on the facts in

this case it would not be possible for the Applicant to prove that the parents had failed in their moral or physical duty to the children.

No evidence has been given to the court that the parents have failed in their moral or physical duty to the children during the time

that the children have been in care or before. Therefore to succeed in its case, the Applicant would have to satisfy the court that

there are compelling reasons why the welfare of these children cannot be found within their family applying the test set out by the

Supreme Court In re J.H., an Infant

48. The standard of proof in childcare cases is the balance of probabilities.

49. The final written legal submissions on behalf of the Applicant summarises in the conclusion what essentially is the case of the

Child and Family Agency and it is worthwhile to quote what it states:

“It is respectfully submitted on behalf of the Applicant herein that the evidence as adduced before the Court is

such that the Court can be satisfied that the requirements of Section 18(1)(c) in respect of both children have

been met – in particular having regard to:-

1. the totality of evidence before the Court – medical, psychiatric, psychological, social;

2. the facts as proven of a history of failure to protect and to place children’s needs first;

3. the cumulative evidence of proven past non accidental injury to infants;

4. the serious allegations of sexual abuse;

5. the long history of the proceedings and the protective orders previously made in respect of both

children;

6. the compelling evidence that the welfare of both children at this point in time requires that Care

Orders are made.

Additionally, the fact that the 2006 English Care Order was made and the threshold reached in that regard, in respect of the two

daughters of the Respondant, is significant.

It is respectfully submitted that a balancing of the rights of the parents whether under the Constitution or otherwise, the interests

and welfare of the children herein to the respect/ vindication due to their legal /constitutional rights for a safe, secure and protected

environment in which to grow must be in favour of the granting of care orders. It is respectfully submitted that the right of the

children to a secure and protected environment can only be secured by this Court granting Care Orders in respect of each of them

until they reach 18 years of age.”

50. The Guardian ad Litem in her evidence supported an Order being made due to Child Protection Concerns.

51. It is therefore clear that the case being made against the respondents is in respect of allegations of the most serious nature, that

the respondents would not be able to properly protect their children arising from the fact that it was being alleged that one or other

of the respondents was a potential perpetrator of sexual abuse of one of the children who was in their care in the United Kingdom or

that they were not a protective factor for their children and that two children in their care were taken into care and subsequently

adopted. It is clear from having heard the evidence in this case that the Applicants case was primarily based on what had occurred in

the United Kingdom which initially formed the basis of their decision to seek emergency care orders and subsequent interim care

orders and their case for a care order was that such events were a predictor for future harm to the children.

52. In cases which come before the District Court for determination there are few that would have allegations which are more serious

than an allegation against a parent that he or she abused their child or any child or failed to be a protective factor for their child. The

Court is entitled to deem such allegations of the most serious and concerning nature.

53. While it was accepted by the parties that the standard of proof to be applied in this case was the balance of probabilities,

counsel for the Respondents in submissions drew the Courts attention to what was stated by Kearns P. in England V Judge Dunne and

Others [2003] 2 JIC 1401 on how a Court should deal with evidence of a serious nature in civil proceedings. This case deals with the

forfeiture of assets the proceeds of drug trafficking. In his judgement Kearns P. states:

“To the extent, therefore, that the very limited reliefs and grounds permitted to be argued at the leave stage in this

case require me to consider the nature of the particular proceedings, I am satisfied they are essentially civil in

character, although possessing characteristics which undeniably justify the description of same as “hybrid”. In such

situations, I think it is fair to say that any judge hearing an application of this sort must be particularly careful to

ensure that no unfairness results from rulings made in the case. As was stated by O'Flaherty J., in O'Keeffe v. Ferris

[1997] 3 I.R. 463 (in the context to a challenge to the constitutionality of Section 297 of the Companies Act 1963)

(p. 472):

“… the plaintiff's case was put on the basis that the civil proceedings were really a disguise for what

was truly an attempt by the Oireachtas to impose a criminal sanction in a civil context. The Court

rejects this construction of the Section. It holds that the Section is clearly within the policy entitlement

of the Oireachtas to enact, it is designed to protect creditors and others who may fall victim of people

engaged in fraud … it is true that the proof of fraud will be to the civil standard, but it is also so that

the more serious an allegation that is made in civil proceedings, then the more astute must the judge be

to find that the allegation in question has been proved”

54. I would accept the submission made to the extent that the Court, in view of the serious allegations made against the

Respondents in this case, must be both astute and careful in finding the allegations made have been proved to the civil standard.

However this is clearly something which must happen in cases such as this where the welfare and rights of children and the

Constitutional rights of parties are at issue. It does not however change the standard of proof applicable to these cases which is the

simple balance of probabilities.

55. I note what Baroness Hale stated relating to the standard of Proof in Re B(Children) (Sexual Abuse: Standard of Proof [2008]2 FLR

at164:

“… Neither of the seriousness of the allegation nor the seriousness of the consequences should make any difference

to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be

taken into account, where relevant, in deciding where the truth lies.

As to the seriousness of the consequences, they are serious either way. The child may find her relationship with her

family seriously disrupted; or she may find herself still at risk of suffering serious harm. Parents may find his

relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children

in the future.

As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and

probability.”

56. An application under Section 18(1)(c ) must satisfy the Court on the balance of probabilities that the child’s health, development

or welfare is likely to be avoidably impaired or neglected unless the order is made.

57. The Courts in England have a more developed jurisprudence on S32 of the Children Act 1989 which is similar to Section 18 of the

Child Care Act 1991. These decisions can be persuasive authority on the interpretation and implementation of child care legislation in

this jurisdiction.

58. The House of Lords in H and R (Child Sexual Abuse: standard of proof) [1996] 1 FLR 80 at 95 on the burden of proof Lord Nicholls

of Birkenhead stated:

“The power of the Court to make a care or supervision order only arises if the Court is “satisfied” that the criteria

stated in S31(2) exist. The expression “if the Court is satisfied”, here and elsewhere in the Act envisages that the

Court must be judicially satisfied on proper material. There is also inherent in the expression an indication of the

need for the subject matter to be affirmatively proved. If the Court is left in a state of indecision the matter has

not been established to the level, or standard, needed for the Court to be “satisfied”. Thus in S31(2), in order for

the threshold to be crossed, the conditions set out in paras (a) and (b) must be affirmatively established to the

satisfaction of the Court.

The legal burden of establishing the existence of these conditions rests on the Applicant for a care order. The

general principle is that he who asserts must prove. Generally, although there are exceptions, a plaintiff Applicant

must establish the existence of all the preconditions and other facts entitling him to the order he seeks. There is

nothing in the language or context of S31(2) to suggest that the normal principle should not apply to the threshold

conditions.”

59. In FH V Judge Staunton Hogan J said:

“The use of the term “satisfied” in the context of legislation conferring discretionary powers on decision makers

(including judges) is, of course, by now a very familiar one. It generally vests the decision-maker with power to do

certain things contingent on specific preconditions to the exercise of jurisdiction having been “satisfied”. Used in

this manner and in this sense the term envisages that the impugned decision can be shown to have been taken

bona fide, in a manner which is factually sustainable and which is not unreasonable: see, e.g., The State (Lynch) v.

Cooney [1982] I.R. 337,361, per O’Higgins C.J. and Mallak v. Minister for Justice [2012] IESC 59 per Fennelly J.

60. Counsel for the Applicants in his final written submissions quoted from the recent decision In the matter of J (Children) [2013]

UKSC 9 of the UK Supreme. It is instructive to this case, however, to quote more extensively from the judgement of Lady Hale at

paragraphs 47 to 50 on the discussion of “ likely “ and what is necessary to meet the threshold in the context of the threshold

criteria.

“The threshold comes in two limbs and each has two distinct components. In the first limb, the Court must be

satisfied (a) that the child is suffering significant harm, and (b) that that harm is attributable to the care given to

him not being what it would be reasonable to expect a parent to give him. In the second limb, the Court must be

satisfied (a) that the child is likely to suffer significant harm, and (b) that that likelihood is attributable to the care

likely to be given to him if the order is not made not being what it would be reasonable to expect a parent to give

to him. It would, as Lord Nicholls pointed out in In re H [1996] AC 563, 591, be odd if the first limb had to be proved

to the satisfaction of the Court but the basis for prediction in the second limb did not.

Since In re H, a clear distinction has been drawn between the degree of likelihood required by the second limb and

the basis upon which the Court can be satisfied of that likelihood. It was held in In re H that “likely” did not mean

“more likely than not”, but a “real possibility”, the degree of possibility required depending upon the seriousness of

the harm which was feared. The House might have held that “likely” meant “probable”, but it adopted a more flexible

test. It is worth noting that Lord Nicholls did not think that adopting this more flexible test would significantly

prejudice the parents’ interests: “so far as the parents are concerned, there is no particular magic in a threshold

test based on a probability of significant harm as distinct from a real possibility” (p 585D).

Having adopted a flexible test of likelihood, it became all the more important to hold that an objective factual basis was required from

which to draw the inference that future harm was likely. This was controversial in In re H [1996] but has been firmly established ever

since and for very good reasons. Care Courts are often told that the best predictor of the future is the past, but prediction is only

possible where the past facts are proved. A real possibility that something has happened in the past is not enough to predict that it

will happen in the future. It may be the fact that a judge has found that there is a real possibility that something has happened, but

that is not sufficient for this purpose. A finding of a real possibility that a child has suffered harm does not establish that they have. A

finding of a real possibility that the harm which a child has suffered is “non-accidental” does not establish that it was. A finding of a

real possibility that this parent harmed a child does not establish that they did. Only a finding that he has, it was, or she did, as the

case may be, can be sufficient to found a prediction that because it has happened in the past the same is likely to happen in the

future. Care Courts need to hear this message loud and clear.

In In re S-B [2010] 1 AC 678, the “real possibility” that the mother had harmed J was the only basis upon which the judge concluded

that it was likely that W would suffer harm in the future. There was nothing else. J had suffered bruises and all bruising to a tiny baby

must be taken seriously. But they had probably been caused on one occasion by one parent. It could not be suggested that the other

parent had failed to protect him. What was impermissible, as stated in para 49, was to make this, and this alone, the basis for

predicting that the mother was likely to harm W in the future. It may well be that when the case was re-heard, facts emerged from

which it was possible to make such a prediction.”

61. The Court finds that in order to satisfy the threshold in this case that the children’s’ health, development and welfare is likely to

be avoidably impaired or neglected then past facts must be proved to enable the Court on an objective basis to determine the

likelihood of future harm on the balance of probabilities. Findings of the Court in cases of such serious import as childcare proceedings

must be based on facts proved in evidence and not suspicions.

62. Evidence was given in this case on behalf of the Applicant by current members and former members of the Social Work team

assigned to the children by the Child and Family Agency. This evidence primarily related to the initial referral from the English Social

Services Child Protection Team to the hospital in which the Respondent had given birth in Ireland, further investigations and

documentation received from the United Kingdom, contact and interactions with the parents, the children, the foster parents and the

Guardian ad Litem. Reference was also made to the findings in the reports from the various experts engaged to carry out

assessments on the Respondents and the children.

63. The Applicants case is primarily based on the events relating to these parents in England and the orders made as a result by the

District Court in England. This is evident from the Sources of Information listed at 2.4 in the Social Work Court Report dated some

time in late May 2014 which was prepared for the hearing. This list included a review of case materials provided by UK social services,

reports from 2 Consultant Paediatricians, a therapist, a Chartered Clinical Psychologist, a report from the children’s’ guardian and a

Judgment of the District Court of England and Wales.

64. No evidence was called to prove the documentation which the Applicants were relying on or the events described in those

documents. No evidence was called by the Applicants to seek to substantiate the serious allegations of child sexual abuse against the

Respondents or their alleged involvement in such abuse or their alleged failure to protect their child from such abuse by the

Respondents in England. No evidence was called to prove the facts forming the basis of the Applicants case that these events were

proof that the children’s’ health, development or welfare is likely to be avoidably impaired or neglected.

65. Reasonable concern or suspicion is not sufficient to enable this court to make Care Orders. This Court only makes care orders on

the basis of proved facts.

66. The Court finds that the failure by the Applicant to call this evidence, which is required to prove the case being made by them, is

fundamental to the courts determination in this case. If the court was to decide this case in the absence of evidence from England

the Court would be failing in its duty to vindicate the Respondents constitutional right to a fair hearing as provided for under Article

40.3 of the Constitution. The allegations made against the Respondents in this case are of a more serious nature, the proof of which

would have a serious and detrimental effect on their good name and reputation.

67. The principles on fairness which a court must apply have been clearly set out in a number of cases. In O’Callaghan V Mahon

[2005]IESC 9 Hardiman J stated:

“In Re Haughey[1971] IR 217 at 264 Dalaigh C.J. said in a lapidary passage:

"In proceedings before any tribunal where a party to the proceedings is on risk of having his good name,

or his personal property, or any of his personal rights jeopardised, the proceedings may be correctly

classed as proceedings which may affect his rights, and in compliance with the Constitution the State

either by its enactments or through the Courts, must outlaw any procedures which will restrict or

prevent the party concerned from vindicating these rights."

On that basis, the Court found that a person in that position was entitled to the following "minimum protection":

"(a) That he should be furnished with a copy of the evidence which reflected on his good name;

(b) That he should be allowed to cross-examine, by counsel, his accuser or accused

(c) That he should be allowed to give rebutting evidence;

(d) That he should be permitted to address, again by counsel, the committee in his own defence."

O’Dalaigh C.J. continued that without these rights:

"No accused - and I speak in the context of the terms of the inquiry - could hope to make any adequate defence of

his good name. To deny such rights is, in an ancestral adage, a classic case of clocha ceangailte agus madra

scaoilte. Article 40, s.3 of the Constitution is a guarantee to the citizen of basic fairness of procedures. The

Constitution guarantees such fairness and it is the duty of the Court to underline that the words of Article 40 s.3

are not political shibboleths but provide a positive protection for the citizen and his good name."

The cross-examination of a witness on the basis of comparing what they had said on oath with an account given on another occasion

is one of the longest established of the conventional methods of contradiction. It has been recognised for centuries.”

68. Further in this judgement Hardiman J. said:

“In my view, it is a matter of common justice, and indeed common sense, that a witness who makes a grave

allegation against another may be contradicted out of his own mouth where that is possible. If a right to do this

were not assured, cross-examination would be gravely hampered, and even subverted. It is a statement of the

obvious to say that the credibility of a particular statement made by a particular person is reduced or destroyed if

he has made a contradictory statement on a previous occasion, unless that can be explained in some way.

Conversely, consistency enhances the credibility of a statement.

These propositions have been recognised for centuries in the common law. This is demonstrated by the elaborate

provision in the law of evidence allowing the proof in certain circumstances of both previous inconsistent

statements by a witness under cross-examination on the one hand and proof of previous consistent statements in

certain circumstances on the other. If a witness does not "distinctly admit" that he has previously made an

inconsistent statement, that fact may be proved, whether the statement is "in writing or reduced to writing".”

69. The extent of the evidence required to prove the threshold criteria for the purposes of making a care order is ultimately a matter

for the judge hearing the case. It is a matter for the Applicant to present the evidence which it believes is sufficient to prove its case

and for the Court to make its determination based on the evidence called by the Applicant and by the other parties to the

proceedings. There is provision under S.27 of the Act of 1991 for the Court on its own motion or on the application of any party to

the proceedings by order to give such directions as it thinks proper to procure a report from such person as it may nominate on any

question affecting the welfare of the child. During the course of these proceedings the Court canvassed the views of the parties and

the guardian ad litem as to whether a report should be sought from social services in England relating to the child protection

conference held with the parents prior to their coming to Ireland in relation to the unborn child. Having heard the parties and on

reflection the Court decided that it was inappropriate to do so. Consideration had been given to this by the Court in exercise of its

requirement to carry out an enquiry into the welfare and best interests of the child. However, it was a matter for the Applicant to

prove the case and in the absence of any evidence from the United Kingdom is would be inappropriate for the Court to seek to make

such an order.

70. In correspondence between the Applicant’s solicitor and the Respondent’s solicitor it was indicated at one stage that witnesses

from England were on the list of witnesses to be called. The Court was informed that it was not possible for witnesses to be called

from England in this case as witnesses were not prepared to travel. The Court indicated that facilities might be made available for

evidence to be given by video link but this was never sought by the Applicant from the court

71. Therefore the court, in its ruling found, that in light of the legal authorities that it could attach little or no weight to the expert

evidence in this case relating to historic documentation received from the United Kingdom save the care orders dated in early

November 2006 in respect of the two children as these orders were accepted by the Respondents.

72. The Applicant had asked the Court to recognise the judgement of the District Court in England dated the early November 2006

that was approved in April 2007 which set out the facts and reasoning of that court for two children to be placed in care and

adopted. At the commencement of the hearing the Court was furnished with a copy of this judgment subject to being informed by the

parties that there would be submissions made to relation to same at a later stage in the hearing as to what weight the Court could

attach to this judgement. The Court did read the judgement and is aware of its contents.

73. In submissions which were made by the parties the respondents drew the Court’s attention to SI112/2005 European Communities

(Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005. The purpose of these Regulations was to

set out the effect on domestic legislation of Council Regulation (EC) number 2201/2003 (Brussels II bis). Article 4 of this SI 112/2005

provides that an application for a decision that the judgement be or not be recognised or for a declaration of enforceability of

judgment shall be made to the High Court.

74. In a ruling during the course of the hearing, the Court declined to recognise this written judgment as no order has been made by

the High Court under Article 4.In any case the Court does not believe that this Regulation does have the effect of deeming facts

found in a previous case of children, who are not the subject of later proceedings as being conclusively proved and that the later

Court could not hear evidence and make its own determination in that subsequent proceeding.

75. The Court does not believe that if it had ruled that it would recognise the judgment of the District Court in England that doing so

would dispense with the necessity for evidence to be called relating to the facts relevant in that case to the child care proceedings

before this Court. This case relates to children who were not the children affected by the District Court Orders in England although

the orders do relate to one or both of the Respondents in these proceedings.

76. The European Court of Justice in Debaecker V Bouwman(Case 49/84) [1985]ECR1779, relating to a similar Convention on the

recognition and enforcement of judgements, stated:

“Although the Convention is, as is clear from the preamble, intended to 'secure the simplification of formalities

governing the reciprocal recognition and enforcement of judgments of Courts or tribunals,' that aim cannot,

according to a series of decisions of the Court, be attained by undermining in any way the right to a fair hearing.”

77. Therefore the judgment in the District Court in England could not be relied upon to prove facts to satisfy the threshold criteria in

this case as to do so would represent an undermining of the rights of the Respondents to a fair hearing where there is a contest on

the facts. The Respondents objected to the judgment being recognised or the facts contained in that judgement being accepted.

78. The Court does accept the principle of the comity of courts. It would not generally be in the public interest that previous Court

decisions are re litigated in full but it would depend on the circumstances and evidence in each case within the Constitutional

parameters of ensuring a fair hearing and having regard to the rights of parents and the children. The principle of issue estoppel has

been considered in a number of cases in the UK. It is not necessary for me to consider this issue in this case absent any evidence

being called from witnesses to give evidence on events in England involving the Respondents in this case. However, it is worth noting

that Courts in England do reopen cases once certain conditions are met. There is a good examination of the principle of issue estoppel

in Paul Ward “The Child Care Acts Annotated and Consolidated” 3rd edition at page 62/63.

79. If it is the case that witnesses in the UK refused or were not prepared to attend Court in this case, as was implied by Counsel for

the Applicant, a very serious view would be taken by this Court which was charged with determining what is in the best interests and

welfare of the children. If this is the case it is a matter which should be raised by the Child and Family Agency with the appropriate

Government Ministers and their Departments to raise this matter with their Ministerial colleagues in the UK government as a matter of

urgency. If necessary, the Court believes that a full investigation should be carried out as to what occurred in this case with a view

to having proper systems and protocols put in place for reciprocal arrangements for witnesses from one jurisdiction to be called to

give evidence in the other jurisdiction in future. The proximity of the respective jurisdictions requires this to be addressed in the

interests of children and in the interests of justice.

80. Evidence was heard in this case from various experts who carried out assessments and prepared reports on the Respondents. The

Court must consider this evidence in light of its previous ruling that it was attaching little or no weight to evidence relating to historic

documentation received from the UK save the Court orders. It is clear that the various experts and the social workers in preparing

their reports and making recommendations have access to this documentation. However these experts also had the benefit of

carrying out various assessments and tests on the respondents and interviewed the respondents as part of the process of preparing

their reports. The Court has noted the admissible evidence and the recommendations made by various experts engaged.

81. A risk assessment was carried out on the respondents and a report was furnished to the Applicants in Autumn 2010. Evidence was

given by Dr B and BH at the hearing of this case. The conclusion reached by these professionals was that they would be willing to

help and support this couple to work towards family reunification on conditions which included the Respondents engaging in weekly

therapy for a period of 18 months, that the Respondents would live independently for a period of time, thus supervised contact would

be significantly increased and thus the child would remain in care until and if gradual and phased rehabilitation plan is in place.

82. A psychological assessment was carried out by Dr. B on the Respondent mother and a report was furnished to the Applicants in

early 2012. The assessment included a psychometric and a cognitive assessment. Evidence was given by Dr. B at the hearing of this

case. Dr.B did not agree with the previous recommendations for psychological therapy. In Dr. B opinion the Respondent mother has a

limited ability to protect the children and provide them with a safe and stable environment and that it was unlikely that the mother

would be able to meaningfully engage and make the necessary changes in a timescale that would be of benefit to the children.

83. Pursuant to a section 27 Order made by the District Court, on the application of the Respondent parents, a parenting capacity

assessment was carried out on the Respondent parents by Dr R and Dr Dr. W and their report was furnished to the Court in Spring

2013. Various assessments were carried out on the Respondents. Dr.R and Dr. W both gave evidence at the hearing of this case.

They concluded that the Respondent parents were of a low risk of perpetrating a sexual offence in the future and recommended that

the children be reunited with their parents on a phased basis and further recommended that the respondents continue with individual

therapy into the future.

84. Pursuant to section 27 order made by the District Court, on the application of the Guardian ad Litem, an attachment assessment

was undertaken in relation to the children. As the cross-examination of the witness was not completed the Court is not in a position

to have regard to the findings of this witness.

85. The Court in this case is faced with a conflict of evidence in relation to the various expert witnesses and the findings and

recommendations which each have given. The Court to the unusual step of requesting that the evidence given by the witnesses to

the Court would be transcribed and made available for consideration. This was done and the Court has read the transcript of the

evidence given by each of these expert witnesses.

86. The Court makes its decision in light of what was stated by Geoghegan J. in N V Health Service Executive [2006] I.R.374 at page

556:

“It was not a correct approach for the High Court Judge simply to prefer one expert’s evidence to the evidence of

another. He was bound to view the expert evidence in the light of the constitutional presumption in favour of the

child being with the birth parents. In those circumstances it would be rare that a finding of “compelling reasons”

would be appropriate where there was responsible and credible expert evidence favouring the application of the

constitutional presumption.”

87. Therefore in the circumstances of this case where I find that the evidence given by Dr.R and Dr.W was both responsible and

credible evidence which favours the constitutional presumption in favour of the children being reunified with their parents and applying

the principle set out above by Geoghegan J. I therefore accept the evidence given by them and their findings and recommendations in

that regard. Further Dr B and NH in their reports did find that reunification was possible if certain conditions were met.

88. Another ground raised by the Applicant in the case was that the Respondents had consistently refused to engage in any

meaningful way with the therapeutic processes as recommended by the professionals in this case. The decision by the Respondents

not to give evidence in this case has made it difficult for the Court to reach any definitive conclusions to their reasons. Evidence was

given on behalf of the Applicant in this regard and this evidence was challenged in cross-examination on behalf of the Respondents.

89. However the Court considered a number of legal authorities which it believes is relevant to the conclusion it must make on this

ground.

Regard must be taken to what was said by Hardiman J. in N V Health Service Executive [2006] I.R.374 at page 529:

“I simply cannot see how non-attendance on a particular expert can be reckoned as constituting or contributing to

a breach of duty when a High Court order has made it perfectly clear that the Applicants were under no obligation

to attend that particular gentleman. Since attendance was optional, there is no obligation on the Applicants to

justify their non-attendance: they were perfectly entitled to, and did, consult an expert of their own. Both experts

are competent and reliable people and there was never any suggestion to the contrary. I frankly do not understand

what is meant by the observation that the Applicants’ failure to attend the first expert led to a “discontinuity in the

evidence”. The case did not, in the end, suffer from any insufficiency of evidence. But the basic point is a blindingly

simple one: attendance on the named expert was, by Court order, optional: therefore omission to attend cannot in

any sense be reckoned as a failure in duty.”

90. In FH V Judge Staunton Hogan J set out the legal position in clear and unambiguous terms when he said in relation to supervision

orders as follows at paragraphs 26 to 30 of the judgement :

“Viewed against this background, it is all too obvious that s. 19 gives no such powers to the District Court to direct a parental

capacity assessment of this kind or to direct that one of the parents partake in a course of psychotherapy. The directions to do so

contained in the District Court order of Summer, 2013, must accordingly be regarded as invalid on their face.

Nor do I accept that s. 47 of the Act of 1991 could properly provide an appropriate legislative basis for such directions in respect of

the parents had this section been invoked by the District Court for this purpose. Section 47 states:

“….where a child is in the care of a health board, the District Court may, of its own motion, or on the application of

any person, give such directions and make such orders on any question affecting the welfare of the child as it

thinks proper and may vary or discharge any such direction or order.”

It is true that s. 47 is, as McCracken J. pointed in Eastern Health Board v. McDonnell [1999] 1 I.R. 174, 184, “an all

embracing and wide ranging provision.” But the section is designed to give the District Court full authority to give

directions to the HSE in all matters pertaining to the welfare of the child who is in care. Thus, for example, as

happened in McDonnell itself, the HSE could lawfully be directed by means of a s. 47 order to prepare a care plan

for the child which was to be reviewed a child psychiatrist.

Yet the s. 47 order must relate directly to the welfare of the child. The Oireachtas did not envisage that this

jurisdiction could be used to impose obligations on third parties (even such as parents) to do certain things. Of

course, removed from the general statutory context, it might be said that, for example, the child’s welfare would be

safeguarded if an abusive or neglectful parent were to be directed by Court order to abstain from alcohol. As we in

this jurisdiction sadly know all too well, there is plainly a clear link between excess alcohol consumption on the part

of parents and the welfare of children in general and, as a succession of writers from Joyce to McCourt have

shown, such excess consumption has historically been responsible for much childhood misery. Yet the Oireachtas

cannot be taken as having conferred a power to impose personal obligations of this kind on third parties simply

because there might be a link between the performance of such obligations and the child’s general welfare. The

purely general language of both s. 19 and s. 47 provide altogether too slender a basis for that far reaching

conclusion so far as third parties are concerned.

Accordingly, for all the reasons I have already set out with respect to the s. 19 jurisdiction, the generality of the

language contained in s. 47 cannot be invoked as to justify positive obligations of this personal kind in respect of

persons other than the child itself. If there were to be such a power to impose personal obligations of this kind on

parents and others in the interests of the child, very clear and express language would be required for this purpose.

To my mind, neither s. 19 nor s. 47 of the 1991 Act enable the District Court to impose conditions of this kind on

third parties. If the law here is considered to be unsatisfactory, this would be a matter of policy properly committed

by Article 15.2.1 of the Constitution to the exclusive judgment of the Oireachtas.”

91. It is clear from these authorities that failure by the Respondents to attend therapy, which they are not obliged to attend, cannot

amount to such a breach of duty that could meet the threshold for a Care Order. There is no provision under Section 17 (Interim Care

Orders) or Section 18 (Care Orders) which enables a court to make an order compelling a parent to attend treatment or therapy.

92. Failure to attend therapy might be a consideration which might be relevant however, where the threshold has been met and

where the Court has to consider whether the child needs the protection of a Care Order. It is worth noting what Hogan J. said in FH V

Judge Staunton at paragraph 43 of the judgement:

“In these circumstances, it will be a matter for the District Court now to consider what steps are immediately

required to safeguard the “natural and imprescriptible rights of the child” within the meaning of Article 42.5. Here

the District Court may also wish to bear in mind that the principle of proportionality also comes into play, so that

the fact that the parents have been found to be guilty of a grave moral failure within the meaning of Article 42.5

does not necessarily mean that in every case the children must be taken into some form of care, although it may,

of course, do so. I stress, however, that this assessment is entirely a matter for the District Court.”

However, this consideration does not arise in this case when the threshold in S18(1) (c ) was not met.

Interim Care Orders V Care Orders

93. During the course of the hearing of this case the Court heard applications for the extension of the interim care orders under

section 17 of the Act of 1991. These applications were contested by the Respondents on two other occasions. On the first occasion

the court ruled that it was granting the extension of the interim care order as the Applicant’s case had not closed and the Court was

satisfied that the grounds for making a section 17 order had been met. On the second occasion the Court granted an interim care

order as it was satisfied having heard the evidence to date to grant an interim care order and the particular reason for this which was

given was first the Court was aware that children had been taken into care in the United Kingdom and that the Respondents had

come to Ireland after they had engaged with the child protection services in the United Kingdom in relation to their then unborn child.

In making its decision as that time the Court was satisfied that the requirements of S17 had been met. Such decisions would not be

unusual taking account of the standard required for the granting of S17 interim care order which is a lower standard than the

standard required for the Court to grant a care order under S18.

94. In that regard it is worth noting what was said by Peart J. in W V Health Service Executive [2014]JIC 301 at paragraphs 10-12 :

“…I would refer to an important distinction between these two sections. Where an application is made for an interim

care under section 17 as opposed to a care order under section 18, a District Judge must, apart from being satisfied

that a care order is about to be applied for, be satisfied, inter alia, that “there is reasonable cause to believe that

any of the circumstances mentioned at paragraph (a), (b) or (c) of section 18 (1) exists or has existed (my

emphasis), whereas under section 18 where a full care order is being applied for, the District Judge must be

“satisfied” that any such circumstances actually exist.

This distinction makes complete sense in circumstances where a need is perceived on the part of the health

authority for some swift action to be taken ahead of an intended full care order application. In the circumstances of

an urgent application for an interim order, it is clear that the Oireachtas has decided that a lower threshold of proof

is required in order to obtain an interim order, as time may not permit for the gathering of all witnesses and

evidence for the purpose of a full care order application. This is clear from the wording of section 17 which requires

only that the Court be satisfied that there are reasonable grounds for believing that any of the circumstances in

section 18 (a), (b) or (c) exist, rather than being satisfied that such circumstances do exist, as is required under

section 18 itself.

An interim care order is of very temporary duration in order to ensure that the child in question is safe and well

cared for until such time as the Court has an opportunity to hear all available evidence in order to be satisfied that

any of the circumstances set forth in section 18 (a), (b) or (c) do exist at the application for a full care order. If

the judge is so satisfied on that occasion the judge may make a care order. If the judge is not so satisfied, the

interim care order will have come to an end and the child will no longer be subject to a care order, though pursuant

to section 18 (5) the Court may in such circumstances make a supervision order under section 19 of the Act.”

In this case the Court finds that it was appropriate for interim care orders to be made pending the final determination of this case.

This case is an example of the higher threshold which must be met for a care order to be made.

The Role of the Guardian ad Litem in Child Care Cases

95. The Guardian ad litem was appointed in this case in late Spring 2013 on the application to Court by the Child and Family Agency

on the occasion of the second adjournment of the hearing date for these proceedings. This was clearly a case where a Guardian ad

litem should be appointed and it is difficult to understand a delay of almost 4 years after Child A came into care and over two years

after, child B into care for such appointment.

96. A Guardian ad litem is appointed by the court pursued the provisions of section 26 (1) of the Child Care Act 1991 which states:

“(1) If in any proceedings under part IV or VI the child to whom the proceedings relate is not a party, the Court

may, if it is satisfied that it is necessary in the interests of the child and in the interests of justice to do so, appoint

a guardian ad litem for the child.”

97. It is clear from an examination of the section that the Guardian ad Litem is not a party to the proceedings as their appointment

relates to circumstances where the child is not a party to the proceedings. However the role of the Guardian ad Litem is not defined

in S26. The Child Care (Amendment) Act 2011 S13 when commenced will amend S26 by including a new sub section (2B) which will

state:

“A Guardian ad Litem shall for the purpose of the proceedings for which he is she is appointed promote the best

interests of the child concerned and convey the views of that child to the Court, in so far as is practicable, having

regard to the age and understanding of the child.”

98. In Oxfordshire County Council –v- JH and VH, Unreported19th May 1988 Judge Costello stated:

“It is, I think, significant in this case that the proceedings in the English Court allow a guardian ad litem to be

appointed on the infants' behalf because that means that a person who is independent of the parents and of the

local authority acts to advise the Court on the infants' behalf of what is to happen.”

99. President Horgan of the District Court in Health Service Executive -v- SO & PSA [2013] IEDC 19 stated

“The Child Care (Amendment) Act, 2007, by substituting a new Section 227 in the Children Act, 2001 requires the

CAAB to “Publish guidance on the qualifications, criteria for appointment, training and role of any guardian ad litem

appointed for children in proceedings under the Act of 1991.”

The CAAB guidelines of May 2009 provide that the Guardian’s role is to “independently establish the wishes, feelings

and interests of the child and present them to the Court with recommendations”. The Guidelines outline that a

Guardian Ad Litem has a dual role, to inform the court of the child’s wishes and feelings and to advise the Court on

the child’s best interests.

These standards of good practice set out in paragraph 1.2.1 of the Guidelines are unambiguous and clearly state

that the Guardian ad Litem must recognise the Health Service Executive’s responsibility for the management of any

case in which s/he is involved. This is also touched upon in paragraphs 59 (j),(k)(l) and (m) in the DK case which

expresses these obligations as duties owed to the Court .”

100. Further in her judgement Horgan P. also said:

“Although Section 26 of the 1991 Act does not outline the role of the Guardian Ad Litem it is common case that the

Guardian Ad Litem brings the child’s wishes and views to the Court, and also expresses a professional view as to

what is in the child’s welfare. High Court jurisprudence acknowledges that a Guardian Ad Litem has a dual role (per

MacMenamin J. in the case of DK (Special Care) [2007] IEHC 488, Birmingham J. in HSE -v- J.M & Anor [2013] IEHC

12 (Section 25 Mental Health) and Finlay Geoghegan J. in R.P -v- S.D [2013] 1 I.L.R.M 196 (Article 11(2) of Council

Regulation (EC) 2201/2003)). “

101. In closing submissions in this case Counsel for the Respondents made a submission on the role of the Guardian ad Litem in child

Care proceedings as follows:

“Consequently when it comes to how legal issues are to be addressed it is solely for the parties to make submissions

and where the child, the subject matter of the proceedings is not already a ward of Court or in full care, any GAL

appointed ought not to be permitted to do anything other than present a report on the views of the child and how

its interests are being served while in temporary care on foot of an interim order. The GAL should not be permitted

to cross examine witnesses or make legal submissions on the issues before the Court and in particular they should

not be permitted to urge a particular outcome, as to do so would effectively render them a party to the case when

they are not so, in fact or in law. Consequently the Respondents respectfully urge this Court to disregard in full any

questions asked by counsel for the GAL and any replies given thereto and where it receives legal submissions

referring to factual matters or the issue to be decided by the Court that it ignore them.”

102. This submission raises the question as to what the role of the Guardian ad litem has during the course of the hearing of childcare

proceedings.

103. From the legal authorities cited above, it appears to the Court that a Guardian ad Litem can be described as a person, appointed

by the Court, who is independent of the parents and the Child and Family Agency who establishes and promotes the wishes, feelings

and interests of the child, in so far as is practicable having regard to the child’s age and understanding, and who expresses a

professional view as to what is in the child’s best interests and welfare and presents this to the Court with recommendations and

advise as what should happen the child.

104. If one accepts this definition as the role of the Guardian ad litem then it would appear that the entitlement of the Guardian ad

litem to cross-examine is more limited than maybe operating in practice in many child care cases before the District Court. Where

facts in the case are in dispute between the child and family agency and the parents unless the Guardian ad Litem has been in a

position to determine the wishes and feelings of the child, then the Guardian ad litem should not become involved in the adversarial

nature of the determination of disputed facts.

Where the issue for determination is a matter involving the welfare of the child the Guardian might, with the permission of the Court,

ask questions relating to this inquisitorial aspect of the hearing where such welfare issues are being considered. It would appear that

the appropriate occasion for the Guardian ad litem to ask such questions would be at the conclusion of the examination in chief and

before the cross-examination of the witness takes place.

105. The Guardian ad litem will have an opportunity during the hearing to give evidence to the Court and present to the court their

findings and recommendations. Evidence given to the Court by a Guardian ad Litem will be hearsay unless this evidence has been

proven before the Court or unless the Guardian ad litem is giving evidence relating to information or admissions made to the Guardian

by a party to the proceedings. The role of the Guardian ad litem is to advise the Court on what the Guardian ad litem believes in their

professional opinion should happen in the best interests and welfare of the child. This advice is of particular benefit to the Court as

the Guardian ad litem is independent of the parties. It is a matter for the Court in light of the evidence presented by the Child and

Family agency, the evidence presented by the Respondents and having regard to the advice given by the Guardian ad litem to

determine what is in the best interests of the child.

106. It is of vital importance to the role which the Guardian ad litem plays in childcare proceedings that the independence of the

Guardian must be scrupulously protected and defended. This may be difficult in the circumstances where a Guardian ad litem reaches

a conclusion to which one or other of the parties does not agree. However it is essential to the proper working of the Guardian ad

litem system that the Guardian ad litem ensures the independence of their role in their interactions with the parties and other

witnesses.

107. It is clear that in this case it was reasonable that a Guardian ad litem be appointed due to the complexity of the issues involved.

It is regrettable that the Guardian ad Litem was not appointed at an earlier date. To illustrate the importance of the preservation of

the independence of the Guardian ad Litem wish to draw particular attention to a number of matters which were of concern to the

Court in this case.

108. Recommendations were made by the Guardian ad litem for the termination of the telephone access between the Respondent

parents and the children. This arose from an incident whereby child A made reference to the fact that she had a sister. Based on

these recommendations, the Applicant terminated telephone access. The Court does not believe that this was the appropriate course

of action for the Guardian ad litem to take. The Guardian ad litem was appointed by the Court and any concerns which the Guardian

had should have been presented to the Court on the occasion of an interim care order application. It should have then been a matter

for the Court having heard the concerns of the Guardian ad litem and having heard the views and evidence of the parties to

determine whether the termination of telephone access was appropriate in all the circumstances.

109. Following the receipt of the report from Dr R and Dr W, which recommended reunification of the children with their parents, the

Guardian ad litem with the children’s social worker arranged a meeting with these professionals with a view to discussing their

findings. The Court finds that it was inappropriate for the Guardian ad litem to have met the professional witnesses with the social

worker as there would be a clear perception as a result on the part of the parents which would have created a negative perception

on the independence of the Guardian ad litem in this case. The Court accepts that the actions taken by the Guardian ad litem were

in accordance with her role but any issues or concerns which the Guardian wished to raise with the professional witnesses should

have been done independently of the social worker.

110. During the course of the hearing the Guardian ad litem made an application to the Court for the appointment of a consultant

paediatrician to review the medical records from England which have been produced in this case with a view to giving the Court a

report on their contents. The Court refused the application and gave the reason as to its decision being that it was too late in the

proceedings. However the Court also wishes to express its view that such an application was not appropriate as it exceeded the role

and function of the Guardian ad litem at that stage in the proceedings. The responsibility to prove the case in childcare proceedings

is a matter for the Child and Family agency and it was clear at that stage in the proceedings that evidence was not going to be called

from the UK. The legal representatives of the Guardian ad Litem was of the opinion that such evidence from the UK should be called.

111. The Court cannot stress strongly enough the importance of the independence of the Guardian being safeguarded. The Guardian

must be seen to be independent of the Child and Family Agency and of the parents. Reference to these events is for illustrative

purposes and the Court finds that otherwise the Guardian ad Litem acted properly.

112. The Court wishes to express a view in relation to correspondence sent by the Chief Executive of the Child and Family Agency to

the President of the District Court in the autumn of 2014, which related to the rates of remuneration and expenses payable by the

Child and Family Agency to Guardians ad Litem. In the course of this letter the Chief Executive of the Child and Family Agency stated

“I am however accountable for expenditure on behalf of the Irish taxpayer. Consequently introduction of the standard professional fee

and a recognised mileage rate is seen as both appropriate and proportionate”. In the letter sent to all Guardians ad litem the Chief

Executive of the Child and Family Agency states “Given the specific role undertaken by Guardians ad Litem it is not for child and

family agency to manage or supervise your work. It is the case, however, that Tusla is responsible for payment and is duty-bound to

ensure value for money for the Irish taxpayer by recognising the inevitable sensitivities. As part of the general review of ongoing court

costs have decided that it is appropriate for there to be a standard hourly rate for GAL’s.”

113. This letter seems to represent a misunderstanding by the Chief Executive of the correct legal position in relation to costs of

guardians ad litem which is provided for in S.26(2) of the Child Care Act 1991 which states as follows:

“(2) Any costs incurred by a person in acting as a Guardian ad litem under this section shall be paid by the Child

and Family Agency. The Child and Family Agency may apply to the Court to have the amount of such costs or

expenses measured or taxed.”

114. It is clear that the legislation provides that if the amounts of costs of the Guardian ad litem in acting in his or her role cannot be

agreed then such costs shall be measured or taxed on application by the Child and Family Agency to the Court. Any effort by the

Agency to fix costs of guardians ad litem is not in accordance with the legislation and could be seen to represent an undermining of

the independent role of guardians ad litem by the Child and Family Agency seeking to exercise a financial control in relation to

Guardians ad Litem that it does not have in law.

115. The Chief Executive of the Child and Family Agency is entitled to be concerned about the levels of expenditure in the agency

which he has responsibility for. The costs of Guardians ad Litem are disbursed from that budget. The necessity for the appointment

by a Guardian ad litem of legal representatives is not provided for in the legislation. S26 (2) refers to “costs incurred by a person in

acting as a guardian ad litem.” To act as a Guardian ad litem does not necessarily mean that such Guardian ad Litem requires legal

representation although a practice appears to have developed to this effect.

116. It is noteworthy that the CAAB Guidelines at 1.2.5 “Interests of the Child” states “The Guardian ad litem shall meet the child as

often as necessary to be satisfied that his/her wishes, feelings and interests are adequately represented to the Court. To achieve

this Guardian ad litem shall: (g)” Consider seeking the approval of the Court regarding: 1. The appointment of a legal representative

for the Guardian ad litem. 2.Consulting where necessary with a legal professional, regarding legal issues in the proceedings.”

117. The Child Care (Amendment) Act 2001, when commenced , will provide in a new S26 (2C) (a) and (b) for the appointment by the

Guardian ad litem of a solicitor and if necessary having regard to the circumstances of the case may instruct counsel and there is

provision for the recovery of reasonable costs and expenses. However this provision has not been commenced to date.

118. The Court wishes to state that in relation to this case because of its complexity that it was reasonable for a solicitor and

counsel to represent the Guardian ad litem. The court has awarded her costs including legal costs.

The Statutory Duty of the Child and Family Agency

119. Section 3 of the Child Care Act 1991 sets out the functions of the Child and Family Agency as follows:

(1) It shall be a function of the Child and Family Agency to promote the welfare of children in its area who are not

receiving adequate care and protection.

(2) In the performance of this function, the Child and Family Agency shall-

(a) take such steps as it considers requisite to identify children who are not receiving adequate care

and protection and co-ordinate information from all relevant sources relating to children in its area;

(b) having regard to the rights and duties of parents, whether under the Constitution or otherwise

(i) regard the welfare of the child as the first and paramount consideration, and

(ii) in so far as is practicable, give due consideration, having regard to his age and understanding,

to the wishes of the child; and

(c) have regard to the principle that it is generally in the best interests of a child to be brought up in

his own family.

(3) The Child and Family Agency shall, in addition to any other function assigned to it under this Act or any other

enactment, provide child care and family support services, and may provide and maintain premises and make such

other provision as it considers necessary or desirable for such purposes, subject to any general directions given by

the Minister under section 69.

120. Section 16 of the Child Care Act 1991 provides for the duty of the Child and Family Agency to institute proceedings and states

as follows:

“Where it appears to the Child and Family Agency that a child requires care or protection which he is unlikely to

receive unless a Court makes a care order or a supervision order in respect of him, it shall be the duty of the

Agency to make application for a care order or a supervision order, as it thinks fit.”

121.In M.Q. v. Gleeson[1998] 4 I.R. 85 Barr J. considered the nature and extent of the obligation placed on health boards under s.3

of the Act of 1991. He stated as follows at pp.99-100:-

"The specific statutory obligation placed on every health board 'to promote the welfare of children in its area who

are not receiving adequate care and protection' is, inter alia, directed towards identifying the categories of children

to which a health board owes a duty of care under the Act. That duty is not owed to all children in its area but only

to those who are not receiving adequate care and protection. The categories thus identified include children who by

reason of a potential situation in the future are liable to require protection at that time from a prospective danger

the nature of which is presently known to or reasonably suspected by a health board. It is present knowledge or

reasonable suspicion of potential harm which is the essence of the health board's obligation to children.”

122. In P (PD) V A Board of Management of a Secondary School and Health Service Executive [1010] IEHC 1 O’Neill J.said:

“… the power to intervene and investigate under s.3(1) should not be confined to those situations where the person

suspected as being a danger to children has a particular access or relationship which identified or identifiable

children. Persons who have a tendency to abuse children in this way can and do develop many varied and often

insidious means of access to children. It would be contrary to the obvious purpose and objective of s.3(1) of the

Act of 1991 to confine the power given in s.3(1) of the Act of 1991 to those situations in which the person

suspected had already an established access to a child or children. Thus, I am satisfied that the power given in

s.3(1) of the Act of 1991 is activated when a credible complaint of child sex abuse is received by the second named

respondent, as it then was, or currently the Health Service Executive. If the allegation is found to be established

after appropriate investigation, it is then a matter for the statutory authority in whom s.3(1) powers are vested to

select the appropriate means to protect any children it finds to be at risk from the predatory behaviour of the

abuser in question. Needless to say the statutory authority must in its investigation observe the norms of natural

justice and fair procedures.”

123. The Court finds that in this case the Child and Family Agency and its predecessor the Health Service Executive were entitled to

take appropriate measures in this case, including seeking an emergency care order and interim care orders in respect of child A and

child B ,having regard to the information which is have been furnished with and the child protection concerns arising from this

information. This was a complex case which would have required detailed investigation. Such an investigation was not made easier by

the necessity for extensive reports and documentation having to be obtained from England. Further it was proportionate for the

Applicant, in compliance with its duty under S16 to institute legal proceedings.

Delay

124. As this juncture in the judgement the court wishes to address the issue of delay in the case coming on for hearing before the

court.

In Summer of 2014, the care order hearing commenced in relation to child A when the Child was almost five years in care. Also in the

summer 2014, the care order hearing commenced in relation to child B when that Child was over three years care.,

To put the time in which these children have been in care in perspective, it is worth noting that for the purposes of the Child Care

Act 1991 ceases to be a child on his or her 18th birthday. Child A and child B, the children of these proceedings, have spent a very

significant proportion of their lives to date in care.

125. From the commencement of the hearing of this matter the Court expressed concern at the delay in this case coming on for

hearing. This is concern was shared by the Guardian ad Litem. The Applicant was requested by the Court to prepare a chronology,

with a view to ascertaining how the delays did occur. This chronology was prepared and was furnished to the Respondents. However,

in what was an all too familiar element of this case, agreement could not be reached on the document to be presented to the Court.

In circumstances where this dispute was not relevant to the final determination of the S18 hearing the Court decided that it would

not make any findings regarding the delays which had occurred, the reasons for the delays and the culpability of any parties to the

delay.

126. The Court finds, however, that the delay in this case was inordinate, inexcusable and entirely unacceptable. The delays in this

matter could not under any circumstances be found to have been in the best interests of the children or to have promoted the

welfare of the children. Child care proceedings require prioritisation and must be dealt with as expeditiously as possible. This was not

done in this case. There is a duty on all parties to child care proceedings to minimise delays in seeking a determination of a case, in

the interests of the child. There was a failure of this duty in this case. The Court is making no finding as to where the fault lies or to

what extent that fault should be shared between the parties.

127. Therefore, I am directing the Guardian ad Litem to write to HIQA and the Ombudsman for Children notifying them of the delays

which have taken place in this case and asking that they would consider exercising their statutory powers to carry out an

investigation into the delays which occurred and if necessary to issue a report and recommendations. If changes, including legislative

changes are necessary to ensure that delays of this magnitude do not occur in future childcare cases then some benefit might be

derived for children in the future. In the event that either HIQA or the Ombudsman for Children wish to carry out an investigation the

Court will lift the in camera rule for that purpose.

128. The Court further requires that the Child and Family Agency carry out an internal independent investigation into its handling of

this case. This investigation should critically examine the role of the social work team in this case. This investigation should also

incorporate an examination of the training afforded to social workers including increasing their awareness of legislative provisions and

appropriate case law, what supports should be put in place to help social workers to deal with complex childcare cases including

supports for social workers to deal with work related stress and whether adequate staffing levels are in place in the social work

department in this area to meet the challenges which are presenting.

129. The Court orders that appropriate protocols and policies be prepared and implemented by the Child and Family Agency in relation

to social work reports prepared for Court in view of a serious issue which arose in this case. Evidence was given of the steps taken by

the social work department and the decision to seek an emergency care order in respect of the child A. During the course of the

cross examination on behalf of the Respondents, attention was drawn to the report prepared for the court hearing seeking an

emergency care order for child A. Evidence was given that the report was prepared using the information which had been provided by

the social services in England which included details of the allegations being made against the Respondents. While the report prepared

used the English report as its basis and transcribed substantial portions it excluded reference to an essential piece of information

which stated that a third party was a potential perpetrator of the abuse. No adequate explanation was given by the witness at the

hearing of this case as to why this sentence was excluded. While this information was clearly material and should have been brought

to the attention of the Court hearing the emergency care order application, this Court believes that in light of the information which

was presented in the report and the circumstances of the case that an emergency care order would have been made even if this

additional information was provided. However, this omission should not have occurred. It is essential to a Court hearing an application

that it can have confidence that where a witness swears to the truth and accuracy of the contents of the report being presented to

the Court that all relevant facts and other information are provided in that report and in evidence to assist the Court in determining

the appropriate order which should be made.

130. The Court recommends that the Child and Family Agency carry out an enquiry as to why the provisions of Council Regulation

(EC) 2201/2003 (Brussels II bis) Article 15 (Transfer to a court better placed to hear the case) were not used in this case as it is

clear from the evidence that England was the habitual residence of the parents who were the holders of parental responsibility of the

child.

131. It is clear from the facts in this case that the Respondents, having engaged with the social services in England prior to the birth

of child A, following advice obtained from a Member of Parliament made a conscious and deliberate decision to come to the Republic of

Ireland based on the consideration of the different childcare legislation applying in this jurisdiction particularly in relation to adoption

of children. This Court cannot condone such actions as were taken by the Respondents in this case. As a result of the outcome of

this case the Respondents may be of the opinion that “the end justified the means.” This Court wishes to inform the Respondents in

the strongest possible terms that it strongly disapproves of the reasons they moved to Ireland. However this case was decided on

the basis of the evidence presented to the Court by the Applicant. The finding of the Court is that this evidence did not meet the

threshold for the making of a care order in this jurisdiction for the reasons which have already been set out in this judgment. However

sufficient evidence was presented for the Court for it to decide that it was appropriate to make a Supervision Order under S19 of the

Child Care Act 1991.

132. It is a matter solely for the Child and Family Agency to take such actions as it deems necessary if it considers it appropriate to

do so, to positively discourage such actions by parents in moving to this jurisdiction to avoid the provisions of childcare legislation in

their country of habitual residence. This would appear to have been a case where the provisions of Article 15 could have been

invoked but were not. An examination by the Child and Family Agency of the circumstances in this case might assist it in determining

whether, in future, different legal action would be taken to enable it to comply with its statutory functions under S3 of the Child Care

Act 1991 in safeguarding the welfare of children should similar circumstances arise.

Conclusion

133. The Court was not satisfied that the threshold provided for in section 18 (1) (C) was met in this case, for the reasons set out in

this judgment, and therefore declined to make a care order. By finding on the evidence that it was not appropriate that a care order

be made the Court decided that it was desirable that the children be visited periodically by the Child and Family Agency. Therefore in

exercise of its powers under section 18 (5) of the Child Care Act 1991 the Court made a supervision order pursuant to section 19 of

the Act for 1 year. The Court was satisfied, based on the evidence in this case, that there are reasonable grounds for believing that

the children’s health, development or welfare would likely be avoidably impaired or neglected and it was therefore desirable for a

Supervision Order to be made. In doing so the Court was aware of the length of time that the children have been in the care of the

Applicant and that the children had resided with the same foster parents since they were taken into care.

134. There will be clear challenges to be faced in this case to ensure that the children are reunified with their parents in a manner

which causes the least possible disruption and effect on the children’s best interests and welfare. This will be necessary for all the

parties to work together to this aim and the foster parents have an important role to play in that regard. The Court would recommend

that appropriate experts would be engaged to advise the parties as to the appropriate manner and stages for the reunification to take

place. It will be necessary for the parties to work in partnership to achieve this and the Court encourages the parties with the

assistance of the Guardian ad Litem, who remains appointed for the duration of the Supervision order to use their very best

endeavours to achieve the best result for the children.

135. The respondent parents will face particular challenges. The Court recommends that it would be important that the parents

accept and implement any appropriate expert advice and assistance including, if appropriate, therapeutic support.

136. Finally the Court wishes to give a piece of advice to the Respondent parents.

“It is important for you to remain aware at all time that for your children A and B there is “no future in the past”.”

Judge Alan Mitchell

Note: In the reporting of this case the Court orders that the anonymity of the children, the parties, solicitors, counsel, guardian ad

litem, the location of the events and the Court location be preserved.