District Court dismisses parents' premature care order discharge application citing child's best interests and stability.

[2014] IEDC 07

An Chuirt Duiche The District Court

MF

And

DD

Applicants

-And-

Tuslá Child and Family Agency

Respondent

Section 22 of the Child Care Act 1991

In the Matter Of An Application to Discharge a Care Order

3rd June 2014

1. This case involves an application by Ms. MF (the mother) and Mr. DD (the father) for the discharge of a Care Order made by this

Court in October 2009, in respect of their child A who is aged seven years, pursuant to section 22(c) of the Child Care Act 1991

(hereinafter referred to as the 1991 Act). The application was lodged in February 2011, and the matter has been before the Court on

a number of occasions prior to the hearing, while a variety of assessments were carried out on the Applicants and A, the child the

subject matter of these proceedings. The hearing took place over the course of two days in March 2014.

2. Reports prepared on behalf of the Respondent by Mr. DC, Social Worker, dated March 2014, Mr. EM, Forensic Clinical Psychologist,

dated June 2012, and Dr. HG, Attachment Therapist dated March 2014, were admitted by the Applicants. Earlier reports by them had

been produced during the proceedings and are noted in the above mentioned reports. Mr. HL, Guardian ad Litem to A also provided a

report dated March 2014. Reports of Mr. LF, Clinical Psychologist, pertaining to each of the Applicants, dated September 2013 were

also submitted. The background to the original Care Order, and to this application, is set out in these reports. The Care Order was

granted due to concerns for the health, safety, development or welfare of A arising from domestic violence perpetrated by the father

on the mother, the mother’s inability to protect A, and trauma suffered by A as a result of being exposed to domestic violence, and

the volatile relationship between the mother and the father.

3. The father gave evidence, stating that he had been in a relationship with the mother for seven or eight years, and had a child, A,

with her. The mother was sixteen at that time. He had served time in prison for a variety of offences, including endangerment,

criminal damage, drunk driving, and public order offences, culminating in a two year sentence imposed in late 2008. He stated that he

used his time in prison well, and said “I bettered myself”, taking courses and engaging in work while in prison. He said he is a changed

man and in a different place in life since his release. The courses included anger management and alcohol counselling. He continues to

attend AA, and says he has a network of support including his sponsors who have become good friends to him. He has also

participated in a parenting course, and is trying to enrol on to another one which focuses on children aged between six and twelve

years. He has also completed a barbering course, followed by a six month work placement, and is now seeking employment and hopes

to set up his own business.

4. He accepted that things weren’t right in the past, and that the Health Service Executive (HSE now the Child and Family Agency

(CFA)) did the best for his child, and that he did not give them credit for this at the time. He denied minimizing the past, or “faking

good” as described by the two psychologists, saying he answered their questions as honestly as he could. He acknowledged that his

recovery from the effects of his past would be a long road, but he said that he is willing to work with the CFA. He said that he wants

to take on his responsibilities, and feels he can be a good father. He said that he has a good relationship with the mother, and there

is no domestic violence. They have recently rented a house, which he said A would love.

5. He admitted that he had a slip last summer, when he attended a friend’s stag party, and got drunk. He called to Ms. MF’s mother’s

house in the early hours of the morning, and Ms. MF called the Gardaí and he was arrested. The charges against him were

subsequently withdrawn as Ms. MF’s mother wrote to Gardaí afterwards saying she had phoned him to call him back to the house for

his keys. He said this was his only slip, and that he does not drink now.

6. He said they were both concerned about A’s religious upbringing. They are both Catholics, and are anxious that A be brought up as

such, while her foster mother is of a different religion.

7. He accepted that A had been taken into care due to a number of factors including domestic violence, his failure to work with social

workers at that time, alcohol misuse, and his criminal convictions. He accepts that things have changed for him, and for A, and that

he/she is well cared for in his/her foster home. He says he wants the child back not for his own best interests but in A’s best

interests and that he has bettered himself and can be a good father.

8. It was put to him that he and the mother had undermined A’s placement a number of times (as detailed in the social work reports)

in June and September 2012. He denied saying anything to the foster carer’s child as alleged, and maintained that A enjoyed the

encounter outside the school on his/her first day. He and the mother were unaware of the impact of this on A, i.e. sleep disturbance

for a number of nights after it. There were several instances of him refusing to co-operate fully with the social workers in relation to

the assessments/reports for this application, and he says that he didn’t mean to be intimidating, but that at the start they didn’t get

on too well. He said that he has only started to come round over the past year. He also denied saying to A that his/her foster mother

was not his/her real mother, and that his/her foster grandparents were not his/her real grandparents (as noted in the report of Dr.

HG). For about ten days following this, A was very anxious and upset, suffering sleep disruption, bowel difficulties, diarrhoea and

incontinence.

9. He denied not being open with Mr. EM and Mr. LF, two psychologists whose reports were before the court. Mr. EM for the CFA, and

Mr. LF for the Applicants, both found that the father was more focused on making a favourable impression and minimizing his

difficulties. Mr. LF notes in particular that that father has not “made significant personality style changes that would be associated

with a reduced risk”.

10. The mother also gave evidence. She completed two parenting courses, and two hairdressing courses, and hopes to pursue further

hairdressing courses. She says that she has matured since the Care Order was made – she is twenty three years of age now; she

was only sixteen when A was first taken into care. She says herself and Mr. DD have their own home now with three bedrooms, in a

nice area; she has a car, driving licence, and insurance.

11. She denied that the incident in which she received a broken nose in 2008 involved the father, and said that if the incident that

had occurred in 2013 had happened in 2008 or 2009 she would not have phoned the Gardaí, but that she has matured now to the

extent that she did phone the Gardaí in 2013, and would do so again in the event of a repeat. She accepts the father has an issue

with alcohol, but says she can be a support to him in his battle to overcome it.

12. She said that the access with A takes place once a month and goes well, but goes very quickly. A calls her “Mammy M”, and calls

the father “Daddy”. She accepts that if A were to be returned that it would be a long process, and that professionals would have to

be involved into the future. She said her child is her priority and that she would choose her child over the father, and that if the

father came home drunk he would not be let in. She denied being under the father’s control. She has a good relationship with her own

mother, who now likes Mr. DD and treats him like a son; whereas she didn’t really know him at the time the Care Order was made. She

accepts that A is attached to his/her foster mother and that it will take time for A to re-establish an attachment to her. She said she

has no problems with alcohol or drugs, and she takes an occasional social drink on special occasions. She said Mr. DD hasn’t been

violent to her since the Care Order was made in 2009.

13. She accepted there had previously been difficulties with the social workers. She explained that she and Mr. DD went to the school

for A’s first day as any parent would want to see such a moment. She said there was no difficulty when they met A and his/her foster

sibling and his father at the Animal Sanctuary, and she wasn’t aware of any difficulty suffered by A in the wake of these incidents.

14. She denied “faking good” to Mr. EM or to Mr. LF. When the contents of paragraph 7.1 of Mr. EM’s report (page 9) were put to her

in cross-examination, her reply was “I’ve nothing to say to that”. In her evidence to the court she said that A’s placement was good,

but that they had had concerns about his/her religious upbringing, i.e. that he/she was being brought up in another religion, rather

than as a Roman Catholic. She wants to ensure that A receives his/her first Holy Communion next year. They accept that A is now

being brought up in the Catholic religion.

15. She agreed that they had not undertaken the therapy recommended by Mr. EM, but said that they had asked for a list of

therapists but had not yet received it.

16. Evidence was then given by the Guardian ad Litem to A. He stated that he felt this application to discharge the Care Order was

premature, as there were a number of outstanding issues which needed to be addressed, and these are very clearly set out in the

reports of Mr. EM.

17. He felt there were two significant aspects of the case, namely the progress made by the mother and the father in their

relationship with each other, and with A. He acknowledged that the father has made substantial progress in dealing with his issues.

The second aspect of the case is the situation with regard to A. He/she has been in care since 2007 when he/she was taken into

care at the age of five months, and has been in care since. He/she has lived with the same foster mother since April 2008, and

he/she has over that time formed a secure attachment to his/her foster mother. The Guardian’s view is that the father and the

mother do not understand the concept of attachment, nor do they appreciate the impact a move from his/her carer would have on

the child. He fears that if moved back to live with his/her parents the child would revert back to the avoidant behaviour exhibited in

the early years of his/her life, and would be highly traumatized by a move. He believes that the personal needs of the father and

mother are not compatible with the interests of A. The child is now a happy, well-adjusted child who has developed a secure

attachment with his/her primary care-giver. He/she has no outstanding emotional or behavioural needs requiring specialist

intervention, although Dr. HG, attachment specialist, notes that the child has an underlying fragility due to his/her difficult early

childhood experiences, and if he/she were to be returned to his/her parents, the child would lose the only secure attachment he/she

has ever known, and this could cause him/her to revert to his/her earlier pattern of severe insecurity and avoidance.

18. The guardian believes the starting point for the parents is to go back to the findings of the Court in the 2009 hearing regarding

domestic violence and alcohol abuse. Significantly he notes that to date, neither parent has accepted that court’s finding, and

indeed, in their evidence to me they both continued to deny the significant incident of violence by the father upon the mother in late

2007, which lead to the Emergency Care Order being made. He says that unless they accept that, and seek the necessary therapy,

he does not believe they can move forward.

19. Most poignantly, the guardian stated that it is now too late for A to be moved from his/her foster mother. He is firmly of the view

that the parents need to accept the findings of the Judge who made the Care Order and make a mature decision in the best interests

of A to develop their relationship with him/her, in care, by working with the CFA. However several of the significant issues that were

present in December 2009 have not been addressed, and until they are, and the parents have undergone individual therapy to deal

with them, the matter can’t move forward. Moving A back to them is subject to too many risks and variables, and while it might be in

the parents’ interests, he does not believe it would be in the child’s best interests. These outstanding issues cannot be dealt with

within a timescale that suits A’s needs. He/she still has emotional fragility, and could be catapulted back to the emotionally disturbed

state he/she was in if faced with similar trauma in the future.

20. Garda CD gave evidence about the incident in the summer of 2013. He was called to a disturbance at the home of Ms. MF’s

mother, where MF was staying for the night, while the father was out with friends. When Garda CD arrived at 4.30 a.m. he found A’s

father walking out of the estate after trying to get into the house. He was intoxicated but coherent, and told Garda CD he was

leaving. Garda CD then called to the house and spoke to A’s mother, who told him that “her ex-partner” had tried to get in. He then

left, but returned again about 15 minutes later to check that things were in order, and found Mr. DD within the cartilage of the house.

He directed him to leave the area pursuant to section 8 of the Criminal Justice (Public Order) Act 1994, and when he failed to comply

with that direction Garda CD arrested him, conveyed him to the nearby Garda Station, charged him, and later released him. Some

days later he received a letter from Ms. MF’s mother, Mrs. AF, saying that she had phoned Mr. DD to ask him to come back to the

house as he had left his keys there. Garda CD said that Mr. DD did not offer this explanation at the time of his arrest. The charges

were later withdrawn. Mr. DD was compliant with the Gardaí on the night.

21. Dr. HG gave evidence and verified her report. Dr. HG is a well-known expert in the field of attachment theory and therapy. She

reported that A had witnessed domestic violence and alcohol abuse, and suffered emotional neglect within his/her home prior to

his/her admission to care. The impact of this was quite severe: when taken into care the child appeared “emotionally frozen”. He/she

avoided eye contact and physical comforting, and was unfamiliar with the idea that he/she could use adults as a safe haven when

he/she was upset or fearful. The child showed no response to separation. This emotional inhibition and over-control fell apart at night,

and his/her fear emerged in the form of nightmares and sleep disturbance. This lasted for several months after he/she came into care.

A had also suffered severe dislocation of his/her hips, probably from birth, but which remained undiagnosed until he/she came into

care when it was noticed by his/her foster mother. The child had to undergo difficult surgery, and spent some months in a cast.

Though he/she suffered a lot of pain during this time, he/she came to form a strong emotional bond with his/her foster mother due to

the quality of care he/she received from her. Thankfully, A appears to have made a remarkable recovery from this, though he/she will

need orthopaedic assessment into the future.

22. On admission to care, Dr. HG noted that A displayed a score of 23% Secure Attachment pattern. By October 2009 this had risen

to 85%, and in re-assessments carried out in April and October of 2012, and December 2013, 88%. A low score is typically found were

there is a history of childhood trauma, abuse, neglect, or instability in the provision of a secure base and permanency for the child. A

high score indicates a history of parental availability and a high level of appropriate care. It is now A’s dominant pattern, though when

stressed A tends to revert to her previous insecure presentation.

23. Insecure-Avoidant pattern of attachment: on admission to care A’s score was 83%, while it had dropped to 20% in 2012 and

2013. This pattern is consistent with neglect and abuse, and tends to emerge when there are low levels of parental care, or when it

is absent. It was the child’s dominant pattern when he/she came into care.

24. Insecure Resistant pattern of attachment: on admission to care A’s score was 30%. In October 2009 it was 20%, and in 2012 and

2013 31%. This is characterized by high levels of anger or emotion, and was not very evident in A, except in his/her sleep when

he/she would shout or scream. It is often observed in children who have observed domestic violence. After admission to care, the

child became less angry, but his/her fear and resistance became activated following access. Therapy and carefully supervised access

have resolved some of these issues for A, but the high levels of anxiety and attachment insecurity he/she previously displayed can be

re-activated when he/she feels unsafe and frightened. Access now works well, except when the parents say things to him/her which

undermine the child’s security in his/her placement. Dr. HG said that it is very important for A to have a secure base, but that

essential permanency work hasn’t been able to begin yet, due to the legal challenge – e.g. where he/she will be in the future, where

he/she will go to school, etc. Dr. HG referred to three such incidents which are detailed in her report: one at access where the child

was shown photographs of his/her extended family; one at the Animal Sanctuary where the father reportedly told A that his/her

foster mother wasn’t his/her real mother, and that his/her foster sibling wasn’t his/her real brother; and the above mentioned incident

on the child’s first day at school. Each of these incidents resulted in significant disturbance for a number of days afterwards, where A

was tearful, upset, fearful, suffered sleep disturbance, incontinence, and one incident of soiling. It is important that permanency work

is done with A as failure to do it could impact on his/her education. If permanency is challenged, it can challenge the child’s

attachment. A child can sense conflict, and cannot have two primary attachments, but can have secondary attachments. A has

achieved a secure attachment to his/her foster mother, and this was very challenging and difficult for him/her to achieve. The loss of

A’s foster mother would be a serious blow to him/her, and it would be impossible for him/her to retain a secure attachment to his/her

foster mother if returned home. A “trial run” of moving home would be very detrimental for A, as he/she doesn’t remember anyone else

ever caring for him/her, and such a loss would be very profound. If A were to move out of care, and were it to be unsuccessful

leading him/her to be returned to care, he/she would lose his/her sense of trust, and would feel “I’ve been let go once already – could

it happen again?”

25. Dr. HG explained that for infants, primary attachment is normally with the mother, and the father becomes important when a child

achieves motor control. Attachment “flowers” between the ages of six months and three years, and the “window” for forming secure

attachments closes at the age of eight or nine. All of A’s “internal mapping” with his/her foster mother would have been done

between the age of eight months and six years; if he/she were to move, all of this will have to be re-mapped, and the difficulty here

is that he/she would be going back to carers he/she associated with distress. This is evident from A’s experience of access, which

initially was so difficult that he/she required therapy to enable him/her manage it.

26. Access, once a month, is now working well but she stressed that it is important for A that his/her parents accept that his/her

permanent attachment is with A’s primary carer. It is very important for a child in care to maintain relations with his/her birth parents,

but not in a way that undermines the placement. As he/she reaches adolescence it will be very important for him/her to have

contact, and receive information about his/her birth parents and extended family. It is important for A that life story work is done with

him/her, and his/her parents need to be involved in this, and co-operate. It needs to be done immediately so that A can develop an

inner sense of security. Positive outcomes for children in care are associated with early placement and permanency, whereas frequent

moves in and out of care predict later emotional and mental health difficulties. If A were to move back to his/her parents, he/she

would be likely to have great difficulty re-establishing the security which he/she now enjoys and from which he/she benefits.

27. The parents were assessed by Mr. EM, Senior Forensic Clinical Psychologist with the HSE (now CFA), and also by Mr. LF, Clinical

Psychologist and Psychotherapist. I do not propose to go into detail about their reports, but I note they are remarkably similar in their

conclusions about both parents. They both found that both parents engaged in “faking good” in response to key questionnaires,

thereby attempting to” present themselves in a favourable light”, and possibly suggests a “denial of imperfection, due to heightened

concern about the consequences of showing negative attitudes and feelings.” Mr. LF says in relation to the father that his findings

“do not allow for a valid appraisal that [the father] has made significant personality style changes that would be associated with a

reduced risk, although he has made some specific behavioural changes including avoiding getting into trouble, has attended a

parenting course, an anger management course, an alcohol awareness programme, and currently does not drink alcohol and attends

AA.” I note that his attendances with Mr. LF covered the period of the incident in the summer of 2013, but he does not appear to

have told Mr. LF about it, which is consistent with the “faking good” finding of both psychologists. In relation to the mother, he finds

that “based on previous court findings of risk to [A] it is not possible on the basis of [the mothers] overly positive response style to

make a valid appraisal that [the mother], who has attended a parenting course, has made sufficient changes in order to rebut the

assertions being made by the HSE [now the CFA].”

28. Mr. EM finds that the father “shares characteristics with those of moderate risk of behaving violently.” However “there is low risk

of imminent violence.” Alcohol is likely to have been a factor in past violence, but may not be a necessary ingredient. He says

“unfortunately, because in my opinion [the father] (and [the mother]) have not been fully honest regarding (domestic violence or

intimate partner violence) I cannot say if his improvement on clinical factors in terms of his general risk of violence has had positive

repercussions for his risk of intimate partner violence.”

29. I accept that the father and the mother have made huge efforts to deal with some, but not all, of the issues which lead to A

being taken into care. They are to be commended for this, for their own sakes, but also because in so doing, they can only improve

their relationship with, and their positive influence on A into the future. I also accept that they have been for the most part frank and

honest in their evidence, although not in relation to the level of domestic violence which was a feature of their early relationship. I

doubt that they set out to deliberately mislead the psychologists, but I believe they struggle with the insight necessary to fully

appreciate the effect of this on A, and the necessity that they face up to it and deal with it as recommended by Mr. EM. I similarly

believe that their actions in undermining the placement were not malicious or sinister; rather they seem to me to be due to that lack

of insight, and the natural and understandable desire of loving parents, faced daily with the loss of their child, to play as full a part as

possible in the significant milestones of that child’s life. They need help to understand the impact of doing this in an inappropriate

way, and guidance to assist them in finding proper means of doing so. They are, and will remain very important persons in A’s life, and

A will need them to be a significant part of his/her life as he/she moves into the difficult phases of adolescence and development.

However, the evidence of the psychologists, the social workers, Dr. HG, and the guardian is overwhelming. A’s best interests require

that he/she remain where he/she is, with his/her current foster mother, and that he/she be assured that this will be permanent, and

supported by his/her parents. The evidence is that were he/she to be moved, he/she would suffer serious, profound and possibly

irreparable damage.

30. The application was clearly brought very prematurely, and has resulted in three further years of uncertainty in A’s life. The

application was lodged in March 2011, and it took until September 2012 for the various assessments to be completed. From October

2012, the parents sought time to address the issues raised in the various reports, resulting in further delay until October 2013 when a

hearing date was assigned in January 2014. Through no fault of the parents, this had to be postponed to March last. There were a

total of sixteen preliminary court appearances followed by two full days at hearing. It is unfortunate that the parents felt that the

only way they could establish what needed to be done by them was to lodge the application in order to initiate the various

assessments which resulted in the “roadmap” set out in Mr. EM’s report, and these assessments would presumably not have been

carried out were it not for the matter being before the Court. It is regrettable, and prejudicial to the interests of a child, that a

mechanism for doing this cannot be found prior to an application being lodged. Such a mechanism perhaps could have avoided such a

large number of court appearances, and a three year delay. The CFA argued that the parents failed to take appropriate therapy and

counselling, while the parents argued that they were given little or no help in this regard. This aspect of the matter was not explored

during the hearing to an extent that would have allowed me to make a finding in this regard. However, the jurisprudence in these

cases makes it clear that there is a positive obligation on the State, in this case through the CFA to work towards reunification of

families. It appears that in this case, the HSE (now the CFA) at the time did not fully address this aspect of the case. It is

understandable given the severe pressure of work that the HSE (now the CFA) would, at the conclusion of a case where a Care Order

is granted, move on to the next, equally pressing case. I do not wish to be critical of the parents or the HSE (now the CFA), but it

appears to me that this aspect of the case should be examined in the hope that similar situations do not arise in the future. Mr. DD

and Ms. EF can, I hope, take some comfort from the fact that they have fought so hard for A, and done so much work up to this

point. A will, I hope, realise in the future that he/she was not abandoned by his/her parents on being taken into care, and will

appreciate what an effort has been made by them on his/her behalf.

31. I must therefore, with regret, refuse the application.

District Court Judge