District Court grants Care Order until age 18 for child lacking parental care, allowing parental access.

[2014] IEDC 04

AN CHUIRT DUICHE THE DISTRICT COURT

CHILD AND FAMILY AGENCY (CFA)

APPLICANT

AND

PH

FIRST NAMED RESPONDENT

AND

SI

SECOND NAMED RESPONDENT

CHILD CARE ACT 1991 – SECTION 18 (1)

IN THE MATTER OF A, A CHILD

25 March 2014

1. This is an application for a Care Order under Section 18 of the Child Care Act, 1991 (herein after referred to as ‘the 1991 Act’) in

respect a child aged 3 years.

2. The child’s mother (the first named Respondent) is legally represented in the proceedings. The mother was properly served with the

proceedings by the Health Service Executive (now the Child and Family Agency). She is fully aware of the fact that that the

proceedings are before the Court today but has not come to court to contest or consent to the Orders sought by the Agency.

3. The children’s father is also legally represented in the proceedings. The father acknowledges through his legal representative that

he cannot care for the child at this time. He consents to the Care Order as he wants what is best for his daughter. The duration of

the Order sought by the Agency is until the child reaches the age of eighteen years. This application is supported by the Guardian ad

Litem (GAL). The second named Respondent contests this duration believing that it is too long. It is submitted on his behalf that an

Order for two to three years would meet the needs of the child for security and enable him to secure residency in this jurisdiction, a

job and a stable home life and that he hopes to be able to offer his daughter a home at that time.

4. The child’s separate interests in the proceedings were represented by his/her GAL.

History of Proceedings

5. The child was received into the Care of the HSE through the exercise by AGS of emergency powers under Section 12 of the 1991

Act in March 2013.

6. In April 2013 the child’s mother consented to the making of an Interim Care Order (ICO) under Section 17 of the 1991 Act. The CFA

subsequently applied for, and were granted, an ICO. That Order was extended on 9 occasions.

7. The mother has two older children; neither of whom are in her care. The father has one younger child from another relationship.

8. The grounds upon which the CFA has applied for a Care Order are that mother lacks the ability to care for the child’s basic needs

or provide the child with safe care and adequate supervision.

9. The mother has failed to prioritise the child’s needs over her own when the child was in her care resulting the An Garda Síochána

having to exercise exceptional powers under Section 12 of the Act to bring the child to safety.

10. She has not demonstrated that she is emotionally availability to the child who has therefore suffered neglect and consequential

harm.

11. Since the child came into care the mother has failed to maintain contact with the child; she has not exercised access to the child

since May 2013.

12. The mother does not show any insight into the child’s attachment needs or the need for consistent and quality contact with the

child.

13. The mother has failed to engage with the CFA on a regular and consistent basis and she has failed to attend the majority of

appointments offered to her. Furthermore the CFA have been unable, due to lack of engagement by the mother, to conduct a

parenting capacity assessment with the mother of the child to identify specific supports which would enable her to safely parent her

child.

14. It has been conceded by the CFA that they will not ask the Court to make a finding of fact regarding alleged physical abuse of

the child by the mother as their investigations of this are inconclusive.

15. The father has indicated through his solicitors that he concedes pivotal points in the “finding of facts” statement of the CFA and

he will consent to the Care Order however he contests the duration of the Order.

16. The father has begun to re-establish contact with the child. However, he concedes that he is not in a position to provide suitable

care for the child at present. But he would like to care for the child when he/she is older. He has not yet attained citizenship, he is

unable to work and currently in temporary accommodation in a different part of the country He has acknowledged that he has some

but yet a limited support network in the wider community.

17. The CFA has been unable to conduct a thorough parenting capacity assessment with the father due to his poor timekeeping,

cancellation of appointments and changes in his personal circumstances.

Decision

18. Having heard the evidence of:

• Mr. D.H. Allocated Social Worker;

• Ms. L.G. Team Leader;

• Mr. S.I. the father of the child;

• Ms. C.C. the Guardian Ad Litem for the child.

19. Having considered the evidence and after considering the submissions of all parties; I conclude on the evidence adduced that the

Agency has established that the children’s child’s health, development or welfare has been avoidably impaired or neglected, and that

it was also likely to be avoidably impaired or neglected into the future unless the court makes an order under this section in respect of

the child. An Order is granted under Section 18(1) (b) and (c) of the 1991 Act.

20. The issue of the duration of the Order is in issue however.

21. I am satisfied on the evidence however that the Care Order for the child in this case should be until the child is 18 years. I believe

that this duration is proportionate on the evidence and having regard to the following:

(a) The child has been in her current placement since April 2013. The evidence adduced is that she has formed a

secure attachment with her carer.

(b) The child has had limited contact with each of her parents.

(c) I am also satisfied on the evidence that the formation of a strong attachment to a primary carer is a vital

component of the developmental needs of the child. The GAL is clear in her professional opinion that the current

placement is vital to the welfare of the child and this professional opinion is also held by the allocated social worker

and team leader;

(d) There are district advantages to the child in having a long term placement secured through the matching

process in this particular case. The social work team leader’s evidence is that there are no substantial impediments

to the current placement being matched as the child’s long term placement notwithstanding the Foster Care

Statutory Regulations regarding the optimal age difference between foster carers and child. In this instance it is her

professional view that the advantages of the placement for the child will be recognised by the Fostering

Assessment Committee.

(e) If the placement is not matched as the child’s long term placement the Court can through Directions ensure that

this case is re-listed for further review by the Court. The father can seek to discharge the Care Order if he is in a

position to offer stability to the child at that time.

(f) It is clear that the father has a deep love for his daughter who is his first born child. He has meaningfully

participated in these proceedings in respect of her. He has another child for whom he says he cares for up to two

or three days per week in a different part of the country; however he is not in a stable relationship with that child’s

mother and can not offer this child stability in the short or medium term on his own evidence. He hopes to secure

residency and citizenship in this country but his current status is not certain. He must furnish his National Passport

to INIS so that they may consider his application to the Department of Justice and Equality may be considered on

the basis of the European Court of Justice judgement in C-34/09 Zambrano v ONEm.

(g) It is acknowledged that he has had access to the child on only two occasions since she came into care but his

interactions with his daughter were caring and appropriate when he saw her and he wishes to have a meaningful

parental relationship with her. It is in the child’s best interests that he/she has good quality contact with each of

his/her parents more, especially in the context of her dual cultural heritage.

Section 37 Access

22. Having heard the evidence set out above and having reached the issues of fact enunciated above I direct that access should be

at the discretion of the Agency in accordance with Section 37 of the 1991 Act, however, the frequency of access with the each of

the parents should now be reviewed following the make of this Care Order in light of the evidence adduced in Court The Agency

should note in particular the necessity of the child developing good cultural attitude towards her dual cultural heritage and customs

and the needs of the child for good quality maternal and paternal sibling contact so that she make sense of her family history.

Section 47 Directions

A. I direct that the Agency create an access plan for the child and her immediate and extended family.

B. The Agency is directed to provide each parent with all supports necessary to assist each of them participating meaningfully in

access visits with the child having regard to the plan based on her best interests.

C. I direct that the Agency provide the entire child with all necessary medial and therapeutic services as identified in the Social Work,

GAL report and Care Plan.

D. I direct that the case be re-entered before the Court (on notice to the GAL) on 26/09/2014 to ensure that the current placement

for the child has been matched as her long term placement. The Guardian to be re-appointed for the review 4 weeks in advance of

the date of re-entry.

E. Under section 47 of the 1991 Act I direct that the case is to be re-entered before the Court by the Agency (on notice to the GAL)

in the event:

(i) The case becomes unallocated to social worker for a period of four weeks;

(ii) The case becomes unallocated to a fostering link worker for each of the child’s foster parents for a period of six

weeks;

(iii) The Agency (for any reason) failure to adhere to the statutory Care Planning regulations;

(iv) The child’s current foster placements break down; or should the CFA seek to change the child’s current foster

placements.

F. The case is to be re-entered before the Court by the CFA (on notice to the GAL) for the purposes of After Care Review on the

nearest Court date to her sixteenth birthday should he/she remain in the care of the CFA at that time.

G. The GAL is to be re-appointed six weeks before the date of re-entry.

H. If the GAL in this case is no longer available at that time then the CFA is to bring an application to the Court pursuant to Section

23 of the 1991 Act for the purposes of having a GAL appointed.

25 March 2014

District Court Judge