District Court grants Care Order for children due to mother's learning difficulties and lack of support.

[2015] IEDC 05

AN CHURIT DUICHE THE DISTRICT COURT

CHILD AND FAMILY AGENCY (CFA)

APPLICANT

-AND-

LP

RESPONDENT

Child Care Act 1991 – Section 18(1)

In the matter of A and B, Children

1. This is an application for a Care Order in respect of two children aged 3 years and 2 years respectively (hereinafter referred to as

Child A and Child B) under section 18(1) of the Child Care Act 1991 (hereinafter referred to as the 1991 Act). The mother is the

Respondent in the proceedings and she opposes this application and wants both children returned to her full time care.

2. The mother was represented by solicitor and counsel in the proceedings and she was also assisted throughout the proceedings by

an advocate to ensure that she was enabled to participate in the proceedings in a meaningful way.

3. The putative father of Child A was established through a DNA test not to be the child’s biological father but had been part of the

child’s life for a period. He did not participate in the proceedings. The putative father of Child B did not participate in the proceedings.

4. Child A and B are too young to express their independent views to the Court regarding their long term care directly or through a

Guardian Ad Litem. A Care Order whether made or not made by the Court can has a life long impact on children and therefore their

separate welfare interests were brought to the attention of the Court through by their Guardian Ad Litem (hereinafter referred to as

the GAL). The GAL She supports the making of a Care Order for both children until each child reaches 18 years of age.

5. I am satisfied that the Court has jurisdiction to hear this application.

General Background

6. The mother is in her mid twenties and was herself in the care system as a child. She has a mild learning difficulty and limited social

or family supports. She became pregnant while still in receipt of “after care services” and currently resides in a supported housing

project. She is acknowledged to love her children and she is affectionate towards them during access visits and is distressed that

they now call their foster carer “mother”.

7. Both children formally came into the voluntary care of the Agency at the request of the mother in the summer of 2013. The

mother’s position is that when she signed the voluntary care request she was experiencing an overwhelming bout of stress. Her goal

was to achieve temporary respite from the day to day care of the children to help her to manage this stress. However, the Agency

then formed the opinion that the children’s health, development and welfare would be avoidably impaired if the children were returned

to her full time care. The Agency then commenced these proceedings to prevent her from taking her children from a voluntary care

arrangement. The children have remained in the care of the Agency under extensions of an Interim Care Order which was initially

granted in the spring of 2014.

8. The Agency’s position was that the evidence in this case was sufficient to meet the threshold criteria for the making of full Care

Orders for each child until they reached eighteen years of age. The evidence to be adduced established a history of unintentional

neglect suffered by the children in the care of their mother. This neglect occurred notwithstanding an array of supports provided to

her by the Agency to support her in her role as parent. The consequent risk to the physical or mental health of the children could not

be ameliorated through the provision of additional supports. They concluded that Care Orders for each child to age eighteen years

were needed to afford the children security within their current foster placement where they have both lived since the summer of

2013.

9. The Agency’s position was also that they offered practical tailored supports to the mother from the outset. They were fully aware

of the mother’s mild learning disability and they also recognised her strengths. Their goal was to enable her to parent successfully

through the provision of wrap around supports. However her rigid pattern of thinking proved to be an insurmountable obstacle to her

accepting these supports consistently.

10. The concerns of the Agency included:-

(a) Concerns relating to the mother’s ability to consistently meet the basic physical and emotional care needs of the

children.

(b) Supervision concerns relating to the children when in her care. While living in supported housing, the mother left the

children unsupervised on several occasions albeit for short periods. Minor accidents resulting in a burn, and a bleach

spilling incident were cited as two examples of unintentional neglect to the older child.

(c) Concerns relating to home management, cooking and basic hygiene skills arising from the mother’s struggle in

establishing routine and her failure to accept a family support worker.

11. Other concerns relating to child safety as outlined in the Statement of Facts include:

(a) Concerns that the mother did not consistently engage in parenting supports during the time the children were

attending the crèche.

(b) Concerns relating to the mother’s ability to budget and her refusal to accept guidance in this context.

(c) Concerns relating to the mother’s decision to withdraw the children from the onsite crèche as she could not manage

her budget.

(d) Concerns relating to the mother’s vulnerability, mental health and stability.

(e) Concerns relating to the mother’s stress management coping mechanisms.

(f) Failure to engage in completion of the adaptive living skills assessment.

12. The Agency filed a comprehensive and detailed summary of their application. The specific issues of concern underpinning their

assessment that Care Orders were required were set out in over seventy paragraphs. The agency also listed the witnesses they

intended to call in support of each fact which would be adduced in evidence and upon which they asked the Court to make findings.

13. Counsel for the mother also filed a comprehensive summary of response and opposition to the Agency’s case for a Care Order.

Many of the facts contained in the Agency’s Statements of Facts were admitted by the Respondent. In particular paragraphs 10, 11,

12, 13, 17, 18, 19, 20, 21, 24, 25, 28, 29, 30, 36, 37, 38, 39(a), 40, 41, 45, 46, 48, 51, 54, 55, 57, 60, 61, 62 and 63 were admitted.

Partial or contextualised admissions were made in respect of paragraphs 14, 15, 23, 27, and 33 of the Statement of Facts and the

first sentence of paragraph 34 was accepted. The incidents set out in paragraphs 35, 43, 50 and 52 of the Statement of Facts were

acknowledged. However, it was denied that the baby’s nappy was unchanged and it was stated that the mother had no recollection

of saying that he was not spoon fed over the long weekend as she was unwell herself. Paragraph 64 was acknowledged to the extent

that the mother accepted that she participated in a psychological assessment but she rejected the outcome of the assessment.

Paragraph 76 was acknowledged but only to the extent of an admission that she suffered from ‘baby blues’ at that time of the

incident.

14. The Mother had no recollection of the incidents set out in the Statement of Facts at paragraphs 22 or 47.

15. The Mother rejected the proposed Finding of Facts at paragraphs 26, 31, 32, 33, 39(b), 42, 43, 44, 49, 50, 52 and 53. She

wished it to be recorded that she attended one session of the parenting plus programme. She denied that she was offered a “one to

one” parenting support course. Paragraph 56 was denied and the mother asserted that she had never been offered a family support

worker. The content of Paragraphs 59 and 68 were denied although it was acknowledged that there may have been some level of

untidiness in the home. The mother wished it to be recorded that she has now made changes to her home and had learned from past

mistakes and established a household routine so that her home was clean and tidy. Paragraphs 69, 70, 71, 72, 74, 75, 77, 78 and 79

of the Agency’s Statement of Facts were rejected completely.

16. In essence the mother was the only witness called to oppose the Agency application. Her case was that a mild learning disability

did not impinge on her ability to provide effective parenting for her two children with supports. She cared adequately for her two

children up to the spring of 2012. It was her position that the Agency acknowledged that her parenting was “good enough” at that

time and did not reach the threshold permitting State Intervention. They closed their child protection file at that time. It was only

when support housing management complained to the Agency about her management and care of the children that the Agency’s child

protection file was re-opened in 2013. It was her contention that stress overload during the interview by the duty social worker

resulted in her decision to voluntarily place her children in care and say things in the heat of the moment that she really did not really

mean. It was her position that her capacity to care for her children (with support) did not change. The case made on her behalf was

that the children should be returned to her care and that adequate supports suited to her as a young mother with mild learning

difficulties should be identified and put in place.

17. It was also contended by her legal team that the assessment tool utilised in the context of the cognitive assessment carried out

by the psychologist and referenced in the social work parenting capacity assessment was flawed. It was asserted that in the absence

of a full and proper assessment of the mother’s learning difficulties it was impossible to adequately tailor supports that would be

necessary to enable a mother with learning difficulties to parent her children.

18. It was also contended that a formal assessment of the attachment between mother and children was not undertaken and in the

circumstances that the Agency has failed to adequately support the maintenance of the relationship between the children and the

mother.

EVIDENCE

19. I have heard evidence from several witnesses over three days:

a) MS, the mother’s key worker in the assisted housing project;

b) CB, Childcare Supervisor at the assisted housing project ;

c) NF;

d) AD, Duty Social Worker;

e) MK, Disability Social Worker;

f) MMcCH, Child Care Leader;

g) JN, Clinical psychologist;

h) JK, Social Worker;

i) The mother; and

j) The Guardian Ad Litem.

20. I do not propose to rehearse the evidence given by each witness in these proceedings. This is a difficult and distressing case for

the mother. The documentation filed by the Agency and fully and comprehensively responded to by the mother’s legal team has been

of assistance to the Court. The evidence adduced through witness testimony was properly and comprehensively interrogated on cross

examination by counsel for the mother.

THE LEGAL POSITION

21. The relevant law to be applied is well established. In summary:

(i) The burden of proof lies on the Agency and the standard of proof is on the balance of probabilities.

(ii) The threshold to be established by the Agency is set out in section 18(1) of the 1991 Act.

(iii) The Court must determine whether the threshold has been reached in the case having regard to the evidence

adduced and having regard to the rights of the parents whether under the Constitution or otherwise and the rights of the

child.

(iv) Even where the threshold for State Intervention has been reached the Court must consider the issue of the

proportionality of the order granted.

22. The Court must have regard to the principle or aim underlying the 1991 Act which accords with that in the Constitution and also

with the jurisprudence of the European Court of Human Rights, namely to try and keep families together or to rehabilitate families who

have experienced difficulties and whose children must be cared for by the State. However it is recognised by this jurisprudence that

when weighing the competing factors the best interests of the child are paramount. This is also reflected in section 24 of the 1991

Act.

Conclusions

23. Having heard the evidence of the professional witnesses, the mother and the Guardian Ad Litem in addition to the facts which

have been conceded by the mother’s counsel I make the following Findings of Facts.

24. I am satisfied from the evidence adduced that the mother was provided with many supports to help her in the discharging her

parental duties.

25. I am satisfied that she declined to listen to T and L in the ‘one to one’ placements made available to her. I am satisfied however

that she did avail of antenatal supports and support services made available to her after the birth of her first child and that she did so

consistently. I am satisfied on the evidence that the mother’s lack of structure and routine impacted not only on household hygiene

and nutrition but also on her care of the children particularly after the birth of her second child.

26. I am satisfied that the particular supported housing project identified for the mother was not the best fit for her due to their lack

of experience in dealing with parents with learning difficulties. Professional support workers in the housing project were unable to

engage the mother consistently in the “on-site courses” around parenting training programmes, life skills, budgeting and the like.

These courses were available and would have gone a long way towards supporting the mother in her parenting role had she availed of

them consistently. However, it must be said that the disability services themselves were unable to motivate the mother to engage in

training for independent living when she was at secondary level in a special school for children with mild learning difficulties during the

period when she was in receipt of care and after care services. I am satisfied that by reason of her rigid personality, the mother

found it difficult to accept the advice, support and guidance of others.

27. However I also accept that in this case the mother received a significant amount of service supports designed to assist her in her

parenting before these proceedings were initiated. I also accept the evidence tendered that the Agency was committed to long term

service provision for the mother. This is not a case where services were not provided or were withdrawn after a defined period of

support; but one where the mother declined to accept the services offered.

28. While MW (project worker nominated as key worker in March 2013) could not recall whether a family support worker was offered

to the mother I accept the evidence of both CB (child care supervisor) and AD (Child and Family Agency duty social worker) that this

service was offered and declined by the mother. I am satisfied however that the offer was made at a time when the mother was very

heightened and as she stated herself when she felt “ambushed” by the visit of AD at the instigation of the supported housing project.

I accept that the mother refused to accept any other supports from the supported housing project following their complaints about

her care of the children to the Agency.

29. The difficulties which the mother faced after her children went into care in 2013 were extremely unfortunate and devastating for

her. Her hopes of a happy and supporting relationship were ignited and extinguished within a matter of months and she suffered a

horrendous assault in a foreign country. Understandably she became overwhelmed and distressed. I am satisfied that her access

continuity was impacted for a period and she became upset that the children increasingly bonded with the foster carer.

30. It is most unfortunate that the Wechsler Adult Intelligence Scale (WAIS IV) assessment undertaken by JN (psychologist) was not

commissioned before the children were received into voluntary care or at least before the assessment of risk which preceded the

decision to apply for an Interim Care Order. Such an assessment could have helped to identify the precise nature of the support

needs required by the mother to support her in her parenting role and the manner in which information could have been imparted to

the mother in a way which ensured that she understood it.

31. I accept the evidence tendered that Child A has demonstrated behavioural difficulties and has speech and language difficulties. I

accept the evidence that Child B had low birth weight and was difficult to feed as a baby.

32. There is no dispute between the parties that the mother is a particularly vulnerable and kind hearted young woman. She struggles

to acknowledge that she has a mild learning difficulty and finds it difficult to accept that she needs supports. No one doubts that the

mother loves her children and this is well evidenced in the testimony of all the witnesses and in the documents before the Court. The

mother in her evidence expressed sadness that her strong bond as a mother was gradually decreasing by virtue of her children being

in care and being cared for on a day to day basis by the foster carer. She loves her children and wishes to parent them.

33. I accept the evidence of JK (allocated social worker) and the conclusion set out at paragraph 19 of the Parental Capacity

Assessment Report dated mid January 2015. I accept JK employed her professional skills as a qualified social worker with prior

experience in the field of learning disability and child protection, and using the “Framework for the Assessment of Vulnerable Children

and Their Families” assessment tool and practice guidance tool devised by Dr Helen Buckley, Jan Horwath and Sadhbh Whelan. I

accept that this assessment framework tool is an acknowledged model of assessment which is regularly employed by the Child and

Family Agency when carrying out a parental capacity assessment.

34. It is particularly tragic that the mother refused to engage further with the psychologist on being told of the results of the WAIS

IV assessment. I understand that she is sensitive to being labelled as a person with learning difficulties because she does not want to

be stigmatised. However the problem she now finds herself facing is due, in large part, to her inability or unwillingness to acknowledge

that she might have any limitations. It is clear from all the professional evidence that the mother also has strengths which can be

built upon if she is open to the possibility of change and is consistent in her efforts to achieve routine.

35. Unfortunately, her refusal to engage further with the psychologist in the diagnostic adaptive living assessment means that the

precise nature of the services needed to assist her in life, in her interactions with her children and those around her will remain ill-

defined.

36. As matters stand all of the professional witnesses and the Guardian Ad Litem who has observed access are agreed that she

cannot, on her own, provide good enough parenting for her two children and notwithstanding the services provided which including

“Marte Meo” therapy. No appreciable improvement was achieved in parenting even with these support services.

37. Both children have been in the primary care of L since the late summer of 2013 and Child A was cared for occasionally with the

consent of the mother by L since November 2012.

38. I accept the methodology employed by the psychologist in the cognitive assessment which concludes that the mother’s

functioning is in the lower end of the borderline range of intellectual ability. The WAIS IV is an internationally recognised tool for

assessing IQ and cognitive functioning. An IQ test by itself is not determinative of whether a parent can or cannot provide adequate

parenting for a child. However, the test can provide valuable insight for the mother and those working to support her, of any

underlying processing deficits acting as a barrier to her understanding. The test can also identify the consequent modifications or

accommodations necessary to assist her in teaching or learning essential skills.

39. I also accept that the methodology employed in the parenting capacity assessment is generally well known and approved within

the profession and I note that no evidence was adduced on behalf of the mother to suggest either that it was not and appropriate

methodology or that the results of the tests or subtests were incorrectly interpreted. The mother is a vulnerable young woman and

she herself has needed professional support services from the Agency throughout her long history with the Agency as a child in care.

I am satisfied on the evidence that without the on-going support of the Agency. which she has consistently failed to fully engage

with, she will not be able to cater to the basic care needs of her children.

40. I note that the Guardian Ad Litem is satisfied with the care plans for each child subject to a review in two years time and that the

current foster placement has been approved as a long term placement for both children.

Decision

41. I conclude on the evidence adduced that the threshold criteria of section 18 of the 1991 Act have been met in respect of each

child and that the health, development or welfare of each is likely to be avoidably impaired or neglected were they to be returned to

the care of their mother at this time as their sole primary carer. I am satisfied that the making of a less interventionist order such as

a supervision order would not address the welfare needs of the children. The Guardian Ad Litem supports the application of the

Agency for a full Care Order until each child reaches the age of eighteen years. The children are in the Guardian’s view securely

attached to their foster carer and become upset if removed from her presence and I accept that this is the reality. It is her

professional opinion that the children enjoy access and that the mother has a lot to offer them but her observations of access inform

her view that the mother needs a lot of support to meet the needs of the children even during access.

42. I make the Care Order in respect of each child under section 18(1)(c) of the 1991 Act and I am satisfied on the evidence that the

Care Order for each child in this case should be until the child reaches their age of majority at 18 years. I believe that this duration is

proportionate on the evidence adduced.

Section 37 Access

43. I direct that the mother’s access be in accordance with section 37 of the 1991 Act and those arrangements should acknowledge

the good relationship which exists between the mother and the social work department and the historical good relationship between

mother and L. It is hoped that home based support will continue to be made available to the mother to support the portion of her

current access arrangements which takes place in her home. The Agency should also facilitate the mother with advocacy services

when discussing access arrangements and child in care statutory reviews relating to each child so she is enabled to fully participate in

decisions affecting her children.

Section 47 Directions

A. 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 that:

(i) the case becomes unallocated to a social worker for a period of six weeks;

(ii) the case becomes unallocated to a fostering link worker for a period of six weeks;

(iii) the Agency (for any reason) fails to adhere to the statutory Care Planning Regulations regarding Child in Care

Reviews;

(iv) the children’s current foster placement break down;

(v) the Agency contemplate or seek to change the children’s current foster placement and the re-entry in that event to

take place before any change in the children’s living arrangements;

(vi) the children’s current placement is not matched as their long term placement by 30 June 2015.

B. The Guardian Ad Litem should be reappointed in the event of any of the events set out at above and the Guardian Ad Litem is to

be re-appointed six weeks before the date of re-entry.

C. The case is also to be re-entered before the Court by the Agency (on notice to and reappointment of the Guardian Ad Litem) for:

(i) To assess the service needs of each of the children at that time having regard to their high level of need as

highlighted by the Guardian Ad Litem;

(ii) For the purposes of an After Care Review on the nearest court date to each child’s sixteenth birthday should the child

remain in the care of the Agency at that time.

D. If the Guardian Ad Litem in this case is no longer available at that time then the Agency is to bring an application to the Court

pursuant to section 25 of the 1991 Act for the purposes of having a Guardian Ad Litem appointed.

E. I direct that the Agency provide the mother with all supports necessary including counselling to enable her to understand the

benefits of further adaptive living assessment so that effective support interventions can be planned which will enable her to more

effectively discharge her role as a parent of children in care.

F. The Guardian Ad Litem is now discharged.

G. In terms of reporting this case nothing is to be reported or broadcast, including any return dates for the case, which would lead

members of the public to identify the child or any of the parties involved in the Child Care proceedings as stipulated by the Courts and

Civil Law (Miscellaneous Provisions) Act 2013.

Rosemary Horgan

District Court Judge