District Court grants Care Orders for children in voluntary care, directing after-care planning and access arrangements.

[2015] IEDC 10

AN CHURIT DUICHE THE DISTRICT COURT

TUSLA: CHILD AND FAMILY AGENCY (CFA)

APPLICANT

-AND-

MC

RESPONDENT

Section 18(1) (c) Child Care Act, 1991

In the matter of Child 1 and Child 2

INTRODUCTION

1. The Agency sought a Care Order in respect of two children aged sixteen and fifteen years of age respectively. The children have

been in the voluntary care of the Agency for most of their lives with the consent of their mother. Their father is deceased.

2. The mother has an enduring and serious mental health illness and her functional capacity waxes and wanes however, she can

become very unwell. She has periods of lucidity. Some six months following the birth of her second child she bravely decided that she

would not have sufficient capacity to parent her children in the long- term and she placed them both in the voluntary care of the

Agency. She has never sought to revoke that consent.

3. The mother’s interests in these proceedings were represented by her Guardian Ad Litem, Mr. RM, who conveyed the mother’s

consent to the making of Care Orders for her children until they reach the age of eighteen years respectively.

4. The children’s views and interests were conveyed to the Court by their Guardian Ad Litem, Ms. RF.

THE FACTS

5. Child 1 is sixteen years old and has been in voluntary care for most of her life. Child 1 has had two foster placements and has

completely integrated into her second foster family, considering herself to be part of that kinship group.

6. Like many children, Child 1 could do better at school and may be slightly immature for her age, but she hopes to attain sufficient

points to pursue third level education in due course if she can apply herself in her final year of secondary school. She is a popular and

likable child with good social skills.

7. Her sibling, Child 2 is fifteen years old and has a diagnosis of Autistic Spectrum Disorder, Developmental Coordination Disorder and

Dyslexia. Child 2 is a remarkably articulate child. Recently Child 2 has also presented with low mood and associated anxiety symptoms,

self harming behaviour and OCD tendencies. Child 2 is socially isolated, but has formed a warm and loving bond with the foster carers

who originally cared for Child 1 also, but reluctantly found that Child 2’s special needs required their full- time care. Child 2 has lived

with these foster carers since infancy.

8. The siblings enjoy a good relationship with each other and with their mother whom they see regularly.

9. The Court heard evidence from:

(a) Dr. W, the consultant psychiatrist of the mother;

(b) MF, the children’s allocated social worker;

(c) Mr. RM, the Guardian Ad Litem for the mother;

(d) Ms. RF, the children’s Guardian Ad Litem.

10. Through their Guardian Ad Litem both siblings have expressed their views and wishes to remain in their current foster placement

and have access to their mother. Their Guardian also supported the Agency application for a Care Order of full duration and approved

of the Care Plan submitted to the Court for each child.

11. Having considered the evidence tendered I made a finding that Child 1 & Child 2’s health, development and/or welfare was likely to

be avoidably impaired or neglected in the absence of a Care Order and the Care Order was made in September 2015 pursuant to

section 18 (1) (c) of the Child Care Act 1991. I further found that the making of the Orders in respect of each child was necessary

until they reached the age of eighteen years respectively.

12. Pursuant to section 37 of the Child Care Act 1991 the mother sought an increase in her current access to her children. When the

mother was feeling well the arrangement was for the children to see their mother once every month in a hospital setting. The

mother’s health has recently improved and she is in a less secure setting and would like fortnightly face- to- face access and weekly

indirect telephone access. Both children love their mother and enjoy seeing her. Child 2 however, does not wish to have any change

in current access arrangement. Child 1 is more open in principle to increased access, but her school and social commitments must also

be factored into any access schedule. The Guardian Ad Litem for the children would like the Agency to have a formal access schedule

setting out fixed arrangements for sibling access, as well as access between each child with their mother when well. However, she

emphasised the need for flexibility around any such plan which would prioritize the needs of the children.

13. Pursuant to section 47, the Guardian Ad Litem for the children sought findings and Directions which would reflect the effect on

each of the children of the Agency’s delay in seeking a formal Care Order for each child in this case.

THE LAW

14. Children belong to a class of people who are particularly vulnerable to abuse of their rights and particularly incapable of asserting

those rights. Section 3 of the Child Care Act 1991 charges the Agency with responsibility to promote the welfare of children not

receiving care and protection and requires the Agency to identifying any such child and to remove children from those risks.

15. Proceedings under the Child Care Act 1991 are often referred to as “care” and "protection" proceedings. The emphasis is on the

need to provide children with care and protection which they cannot receive in the care of their parents.

16. Section 4 of the Child Care Act 1991 provides for the voluntary reception into care of children, with the consent of their parents,

where the Agency conclude that they require care and protection and are unlikely to receive it unless they are taken into care.

However, section 4 also recognizes that the Agency has no right to keep a child in its care if the parent or the Guardian does not also

agree to that position. If the Agency and the parent disagree on the need for care and protection and the parent seeks the return of

the child to their care then the Agency must apply to Court for a Care Order or Supervision Order. Where a child is in the voluntary

care of the Agency they remain in the custody of the parent. Section 4 (3)(b) of the Child Care Act 1991 Act provides that the

Agency must have regard to the wishes of a parent or person acting in loco parentis while the child is in voluntary care. The parent

must therefore be consulted on many care decisions for their child. Parental consent must be sought for medical treatment deemed

necessary for the child, for educational decisions such as signing forms consenting to school trips at home and away, for a child to

have a passport etc. Therefore a parent who has voluntary relinquished day to day child care responsibilities for a child must still be

consulted and their consent sought for the many child rearing decisions. The legal control and responsibility for the child is fragmented

when a child is in foster care.

17. Section 16 of the Child Care Act 1991 Act places a duty on the Agency to apply for a Care Order where it forms the view that a

child requires care or protection which they are unlikely to receive unless a Court makes a Care Order or a Supervision Order. The Act

itself is silent as to the optimal timing for such a decision; however section 24 of the Act provides that welfare of the child is the first

and paramount consideration.

18. The Guardian for the children, Ms. RF, is of the view that the Agency ought to have applied for a Care Order in respect of these

children at a much earlier stage. It is also her view that the children’s health, development and welfare were negatively impacted by

the delay in seeking a Care Order in this case. She stated that Child 1 suffered pain and distress in securing medical treatment for a

broken limb when she was a child because the hospital insisted on parental consent to treatment and securing that consent took

time. Child 1 also expressed annoyance to her regarding sundry delays in procuring parental consent for school trips, passports etc.

Equally Child 2 expressed annoyance about the need to secure parental consent to medical treatment. Child 2 was prescribed

medication by a treating psychiatrist, but the mother disagreed with the need for this medication and so the medication was not

made available to Child 2. The Guardian for the children also wished it recorded that Child 2 was distressed by the mother’s refusal to

sign a passport form having initially agreed to do so. This refusal was in fact the triggering event for the current proceedings. That

said, each of the children love their mother and like to see her. Child 1 in particular is very concerned about her mother’s fragile

mental health.

19. The Guardian also noted that Child 2’s foster carers (who cared for Child 2 since infancy) were without a fostering social worker

to support them for a number of years in violation of fostering standards. The Guardian also questions the tacit decision of the

Agency to accept a ‘voluntary consent’ from a parent who has fluctuating capacity to consent. The initial consent form was for three

months and was never updated or renewed. That notwithstanding each child has been in voluntary care for well over a decade. I am

advised that the foster carers for Child 1 and 2 are anxious to apply for enhanced guardianship rights under section 43A of the Child

Care Act 1991. The Agency has indicated its support for such application by the foster parents judging it to be in the best interests

of each child. The children’s Guardian has stated that each child would like their respective foster carers to have such enhanced

status as they wish their day to day reality to be reflected in the status afforded to their foster carers.

DECISION

20. I am satisfied on the evidence of Dr. W that the mother had sufficient functional capacity to sign the initial form of consent to

voluntary care for her children. I am also satisfied that the mother’s functional capacity to consent to voluntary care has fluctuated

in the intervening years and that she has been very unwell at times. I am also satisfied on the evidence of her Guardian Ad Litem, Mr.

RM that the mother consents to the making of a Care Order by the Court and fully understands the importance of her decision. It is

acknowledged by the Agency and the Guardian that the mother loves her children and wishes the best outcome for them. She is very

supportive of their respective foster placements.

21. Although the mother validly relinquished primary care of the children in or around 2000 for a period of three months it would seem

that the Agency thereafter relied upon her tacit consent to allow the children to remain in the care of the Agency. The mother never

sought the return of the children to her day to day-care however, she asserted parental rights when requested by the Agency to

consent/withhold consent to medical or dental treatment for the children or to consent/withhold consent to holiday and travel

arrangements for her children.

22. The Agency brought an application to Court under section 47 of the Child Care Act 1991 in March 2015 to permit the Agency to

apply for a passport for Child 2 contrary to the mother’s wishes. The Agency, foster carers and Child 2 wished the child to have the

benefit of a trip to Euro Disney as this was considered in the child’s best interests. The Application was not granted at that time, but

a Guardian Ad Litem was appointed under the District Court rules for the mother to enable her to meaningfully participate in the

proceedings. The issue was further revisited before the Court two days later and the mother’s consent to the issuing of the passport

was granted. At that time the Agency also applied for an Interim Care Order and initiated care proceedings under section 18 of the

Act with respect to the children. The Court thereafter appointed a Guardian Ad Litem for the children in April 2015 in connection with

the care proceedings.

23. This Court has no role in determining whether the Agency has or has not failed in its statutory responsibility to Child 1 and 2 under

section 16 of the Child Care Act 1991 Act. The question of whether the Agency allowed Child 1 & 2 to drift in voluntary care or

whether it failed to provide consistent care planning for Child 1 & 2 is not a question for this Court to determine. Any alleged breach

of rights or of maladministration must be determined in a different forum.

24. The Court is asked under section 37 to make a formal access Order regulating access by Court Order in accordance with the

mother’s wishes. Having considered the evidence and the views of the children I am satisfied that access between the children and

their mother should continue to be regulated in a flexibly manner pursuant to arrangements agreed from time to time in accordance

with section 37 of the Act taking into account the views and best interests of all parties.

25. The Court has been asked under section 47 of the Child Care Act 1991 Act to give Directions and make Orders on questions

affecting the welfare of Child 1 & 2 as it considers proper in light of the evidence. In that context I make the following Directions and

Orders

a. 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) Either in the case of Child 1 or Child 2 the social work case becomes unallocated to a specified social worker for

a period of three weeks;

(ii) Either in the case of Child 1 or Child 2 the social work case becomes unallocated to a fostering link worker for

the foster parents for a period of three weeks;

(iii) If the Agency (for any reason) fails to adhere to the statutory Care Planning Regulations in place for the time

being in the case of Child 1 or Child 2;

(iv) Should either of the children’s current foster placements break down or end for any reason or should the

Agency seek to change either of the children’s current foster placements.

b. I direct the Agency to provide a written schedule for defined sibling access arrangements between Child 1 and Child 2

on or before the end of October 2015.

c. I direct the Agency to provide a draft After Care Plan for Child 1 on or before the end of May 2016 and that the

Guardian Ad Litem be reappointed on this date also for the purposes of reviewing the After Care Plan as to its suitability

to meet the individual requirements of the child and in the event that the Guardian deems the After Care Plan deficient for

any reason the Agency is directed to re-enter the case and bring the matter before the Court at the earliest opportunity

possible under section 47 of the Act for the Court’s further Direction or Order.

d. I direct that the Agency to provide a draft After Care Plan for Child 2 on or before the end of February 2018 and that

the Guardian Ad Litem be reappointed on this date also for the purpose of case is to be re-entered before the Court by

the Agency (on notice to the GAL) for the purposes of After Care Review Services for Child 1 on of reviewing the After

Care Plan as to its suitability to meet the particular after care requirements of Child 2. In the event that the Guardian

deems the After Care Plan deficient for any reason the Agency is directed to re-enter the case and bring the matter

before the Court at the earliest opportunity under section 47 of the Act for the Court’s Direction or Order.

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

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

27. In terms of reporting this case nothing is to be reported or broadcasted 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.

28. The Guardian Ad Litem is discharged in respect of these proceedings subject to re-appointment as heretofore set out.

Judge Rosemary Horgan

District Court Judge