Court grants full care order for child A and directs structured access and parenting plans for parents.

[2015] IEDC 02

Dublin Metropolitan District

IN THE MATTER OF SECTION 18 OF THE CHILD CARE ACT 1991

IN THE MATTER OF CHILD A

Between:

CHILD AND FAMILY AGENCY

APPLICANT

-AND-

ND

RESPONDENT

AND

AC

RESPONDENT

Judgment of Ms. Justice Sinead Ní Chúlachain delivered on the 20th day of February 2015

Background

1. This is an application by the Child and Family Agency pursuant to section 18 of the Child Care Act 1991 for a full care order in

respect of A, who is four years and five months old.

2. The first named Respondent is child A’s mother and she was at the hearing and was represented throughout by solicitor and

counsel. She was assisted by her advocate. The second named Respondent is child A’s father and he was served with the

proceedings. He is not a legal guardian of child A. He did not appear on the first day of the hearing but he did attend and give

evidence on the second day. He was not represented.

3. The first name Respondent is now 19 years old (having been 15 when child A was born) and she was herself in voluntary care for a

period between August 2012 and July 2013. The Second named Respondent is 22 years old. The parents are unmarried but they are

living together in a long term and committed relationship and are engaged to be married.

4. Child A’s wishes and interest were brought to the attention of the Court by the Guardian ad litem who was also legally represented

throughout.

Proceedings

5. An Emergency Care Order was granted for child A in August 2012. In September, 2012 an Interim Care order was granted for child

A, which was extended from time to time until the hearing.

6. The hearing of the section 18 application was conducted over two days on in February, 2015. In accordance with the Practice

Direction, Outline Replying Submissions were made by the first named Respondent to the Summary of Application and Proposed

Findings of Fact of the Child and Family Agency. The First named Respondent conceded some of the proposed findings of fact and

contested others.

7. The Child and Family Agency sought a Care Order until child A is 18 years of age and contended that this was the appropriate

period (a) as the default period set out in section 18(2) and (b) on the grounds that the parents, and in particular the first named

Respondent, had disengaged from the available supports for a period of almost one year and that child A’s welfare required consistent

parenting and certainty. They disputed that the first named Respondent had capacity to care for child A at this time and that she

had sufficient motivation to enable herself to care for child A in the future.

8. From the outset of the hearing, the first named Respondent conceded that the criteria for making an order under section 18(1) (c)

were met but she disputed whether it was proportionate to make an order until child A was 18. It was contended that a shorter

period would be proportionate and would provide a suitable opportunity for the first named Respondent to access supports as

appropriate and necessary and enable herself to be in a position to care for child A on a full time basis with the support of the second

named Respondent. This position was also adopted by the second named Respondent when he attended.

9. The Guardian ad litem supported the Child and Family Agency’s application for a full care order until child A is 18 years of age. He

submitted that the parents had not shown any capacity to change, all of the supports which had been in place were terminated due

to non-attendance or non-engagement and, in his view, it was now the responsibility of the parents to show that they had capacity

to change.

Evidence

10. Oral evidence was heard from

i) Mr.OD allocated social worker from 2012 to June 2014

ii) Ms.EG, social care leader

iii) Ms.MD allocated social worker from November 2014 to date

iv) Dr Mc C, psychologist

v) The first named Respondent

vi) The second named Respondent

vii) The Guardian ad litem.

11. Written reports from Dr. Mc C, Mr.OD and Ms.MD were also relied upon. The Guardian ad litem also provided a written report to

the court.

Findings of fact

12. Child A was born in September, 2010. She lived with her mother and her grandmother, Ms LD, from her birth. She had regular day

time contact with her father when she visited him with her mother at his home. Child A’s mother was received into voluntary care in

August 2012 with an agreement and safety plan that child A remain in the care of her grandmother, Ms LD.

13. In late August 2012, the first named Respondent tried to remove child A from Ms LD’s care and on the following day, she did

remove her from her crèche in contravention of the safety plan and child A was missing for a period. At the end of August, 2012 an

Emergency Care Order was granted for child A and she and the first named Respondent were subsequently located. A foster

placement was obtained for the first named Respondent (who remained in voluntary care) and child A was returned to the care of Ms

LD. Access was organised so the first and second named Respondent could visit child A. Child A has remained in the care of her

grandmother, Ms. LD pursuant to Interim Care Orders made in September, 2012 which remains in place to date,.

14. An Assessment of child A and first named Respondent was carried out by Dr Mc C, psychologist and completed in May 2013. Child

A’s attachment to her grandmother was secure and she also had a secure attachment to her mother. Dr Mc C identified that the first

named Respondent has specific speech and language needs and significant communication and learning needs. Dr Mc C also identified

that the first named Respondent has significant emotional needs and was solely dependent on the second named Respondent

emotionally, socially and psychologically which raised a concern about her ability to keep child A safe in terms of putting her own

attachment needs ahead of child A’s safety. This was disputed by the first named Respondent but having regard to subsequent

events, I accept that this concern was well founded. Dr Mc C concluded and I accept that the first named Respondent did not (as of

May, 2013) have the skills required to provide good enough parenting for child A but that with sufficient support, supervision and

direction she might develop those skills.

15. A Parenting Capacity Assessment for the second named Respondent was carried out by Mr OD, the then allocated social worker.

It identified that the second named Respondent had significant parenting capacity but also recognised some concerns and

weaknesses.

16. Following this, an Agreement was made in July 2013 (the “12 month agreement”) was entered into between the parties and the

interim care order was extended for 12 months so that the recommendations could be followed through. Pursuant to this, Ms LD

remained child A’s foster carer and primary carer. The first named Respondent transitioned out of her voluntary care placement (with

her brother) and returned to live with Ms LD and child A to provide joint parenting to child A. Specific training and parenting tasks

were to be assigned to the first named Respondent whose engagement and follow through was to be assessed and monitored on an

ongoing basis. The second named Respondent’s parenting role and access was also formalised and his engagement and follow through

were to be assessed and monitored on an ongoing basis. At the end of the 12 month period a review was to be conducted by Dr Mc C

with a view to assessing the first named Respondent as the primary carer of child A. Ms EG was identified in the agreement as the

primary person to offer supports to the first named Respondent with a mentoring parenting role being provided to the first named

Respondent by Ms LD on a day to day basis. Ms J O’R was identified to offer supports when Ms EG was on leave.

17. The transition went smoothly and initially the new arrangements went well. Some family mediation sessions took place between

Ms LD and the first named Respondent. Child A (just 4 years old) started school in September 2013. Ms LD was given specific tasks

and these were being built up. In September and more definitely in October 2013, Ms LD raised concerns that the first named

Respondent was too focussed on her relationship with the second named Respondent and was not being sufficiently led by child A’s

needs. There was increasing tension between Ms LD and the first named Respondent as to their respective roles in relation to child A.

By November, 2013, the first named Respondent had left her education course and was dropping out of parenting tasks for child A.

She was staying out with the second named Respondent to the detriment of child A.

18. By November 2013, Child A’s access with her father was going very well. He was observed to be very child led and child focussed

and had moved from supervised to unsupervised access and then to unsupervised access in his own home.

19. In November 2013 an incident occurred during the second named Respondent’s access where in breach of the agreement, child A

was taken to visit the second named Respondent’s brother (with whom she was completely unacquainted) in the Midlands prison. The

second named Respondent was found in possession of a substance suspected to be cannabis. The Gardai were called. The second

named Respondent was taken to the Gardai station. Child A was present and witnessed the presence of the Gardai. The first named

Respondent’s received a JLO warning as a result of this. A file was sent to the DPP in relation to the second named Respondent. Child

A was very distressed, scared and upset following this incident. The second named Respondent accepted in evidence that it was his

decision to go to the prison and that he had overridden the first named Respondent who didn’t want to bring child A. He accepted

that this was a poor decision by him in circumstances where he was aware that he was responsible for child A’s welfare. Ms LD was

angry with the first named Respondent following this incident and child A was distressed by the first named Respondent’s reaction.

20. Following this incident, the plan was reassessed. Basic care tasks for child A were overwhelming the first named Respondent so

that the one on one Incredible Years parenting programme could not commence. She was preoccupied with her relationship with the

second named Respondent and was not prioritising child A. She felt she was being excluded from child A’s life by Ms LD. The

professionals then involved formed the view that the first named Respondent was not fully engaged in the plan. The plan was

amended to withdraw the parenting tasks which were overwhelming her from the first named Respondent. She was encouraged to re-

engage with education and counselling. Following a speech & language assessment, a block of 5 appointments was offered (of which

she attended 3). The foster link worker was to do some work with Ms LD. Access for the second named Respondent was also

reassessed.

21. A professionals meeting in January 2014 (mid way through the 12 month agreement) was concerned about the overall lack of

progress. The negative impact on child A had lessened following the withdrawal of basic parenting tasks from the first named

Respondent and the reduction in tension between her and Ms LD as a result but there was concern about the impact on her if the

plan continued to the next stage. The second named Respondent had been involved in two incidents of assault which are still before

the criminal courts and he had lost his job as a result. One further month was given to see if any progress could be made but at the

professionals meeting in February 2014 it was decided to withdraw from the plan and to proceed with a fostering assessment of Ms

LD. Following the decision being communicated to the parents, they withdrew from engagement with the social workers and the 12

month agreement was terminated. Full care order hearing dates were applied for when the interim order was next extended in July

2014.

22. The first named Respondent continued to reside with Ms LD and child A until in or around June 2014 when she left to live with the

second named Respondent in his home. She has continued informal contact on a frequent basis with child A. She has a key to the

house and visits nearly daily with the agreement of Ms LD. She has a close and loving relationship with child A but is not responsible

for parenting tasks. When she misses a visit child A misses her and asks for her. She has engaged with the court proceedings at all

stages and has attended every hearing. She attended child A’s child in care review in January 2015. She has not engaged with the

social workers or with the review of her parenting capacity assessment by Dr Mc C despite being offered a number of appointments.

23. The first named Respondent undertook an internet parenting course in the summer of 2014. She has also secured a place on a

parenting support programme run by The Base to commence in February 2015. She has applied for social housing. She is open to

attending family therapy or mediation to improve her relationship with Ms LD and her partner Mr FC with whom she has a fractious

relationship.

24. The first named Respondent turned 18 years of age in November 2013. She was never formally assessed for aftercare in line with

the Child and Family Agency’s national policy of not assessing aftercare needs for children who come into care after 16 and leave

before they are 18. However, significant aspects which would have been included in a formal aftercare plan were put in place for her.

Her accommodation needs were addressed. Her educational placement was provided for. She was provided with family mediation

supports. She was provided with supports by Ms EG, the social care leader (& Ms JO’R while Ms EG was on leave). These supports

were not limited to her parenting role but would have addressed any wider needs she had. She was provided with (limited) speech &

language therapy. I am satisfied that she would have been provided with further supports had she continued to engage. The supports

offered amounted in effect to an aftercare package. However, she disengaged from all services in February 2014.

25. Following the meeting in February 2014, the second named Respondent terminated all contact with child A abruptly and without

explanation to child A who attended the health centre for several sessions when he did not show up for access until the social

workers finally cancelled to the sessions. He also failed to attend the Parenting Plus programme to which he had been signed up. He

failed to engage with a review of his parenting capacity assessment. Although child A saw him (outside her birthday party) and

wanted to talk to him and was distressed by his failure to engage with her and he was advised by Ms LD that he needed to talk to

the social worker in order to resume access, he failed to respond to requests for a meeting with Ms MD the newly allocated social

worker. At the urging of the Court he attended the second day of the hearing and has made an appointment with the social worker

with a view to resuming access with child A.

26. Child A is well settled in her placement with her maternal grandmother which has been long term matched and approved. She has

a secure attachment to her grandmother as her primary carer with whom she has lived since birth. She also has a good relationship

with her mother and she misses her if she doesn’t see her. She has generally good health and has reached all of her developmental

milestones. She is a happy well adjusted child who is a little shy at first but engages well with everyone. She has started school very

young and she may be struggling a little academically. Consideration will be given to holding her back a year or seeking additional

educational supports for her. She has had some communication difficulties and her grandmother has been doing some phonetics work

with her at home. She will also be assessed for speech and language therapy.

Wishes of child

27. Child A’s wishes, insofar as they can be ascertained given her age, were conveyed to the court by the Guardian ad litem. She is

very content living with her grandmother and her partner. She recognises their home as her home and her secure attached base. She

also loves her mother and is happy to see her and is not conflicted about the informal nature of her contact with her mother. She

misses her when she does not visit and asks Ms LD to contact her if visits are overdue. She has also expressed a wish to see her

father more and she is sad that he is not in her life. She was distressed and somewhat confused by the ending of her contact with

him. She is unaware of the court proceedings and they have had no impact on her to date.

The Law

28. The legal principles are well established and clear. The burden of proof lies with the Child and Family Agency on all issues and the

standard of proof is the balance of probabilities.

29. The evidential threshold to be established is a high one. Article 42.5 of the Constitution (pre amendment) confirms that the State

may only intervene to supply the place of a parent in “exceptional” situations where there has been parental failure. Any interference

considered necessary to protect the rights of the child must be implemented by appropriate means but always with due regard to the

natural and imprescriptible rights of the child. It is necessary to have regard to the rights of the parents whether under the

Constitution or otherwise, including under the Child Care Act itself, the European Convention of Human Rights and the European

Charter of Fundamental Rights and these rights must be balanced with those of the child.

30. Section 18 (1) of the 1991 Act is the statutory expression of this constitutional threshold and provides for the making of a Care

Order where:

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

31. Where such circumstances have been established, the Child and Family Agency must also establish that the child requires care or

protection which she is unlikely to receive unless the court makes an order under this section.

PROPORTIONALITY

32. Where the threshold for a Care Order has been reached the Court must then go on to consider the issue of the proportionality of

the Order granted.

33. Section 18(2) of the Act deals with the duration of a Care Order. The options open to the Court are to commit the child to the

care of the Agency for so long as she remains a child or alternatively for such shorter period as the Court may determine.

34. It has been submitted on behalf of the Child and Family Agency that the default provision for the duration of the order must be

the provision first mentioned in s. 18(2) i.e. until the child is 18 years. Having regard to the constitutional imperative that interference

in the rights of the Family is only in “exceptional” circumstances where there has been parental failure and that the interference must

be necessary to protect the children, I do not accept that that is the correct legal position. The onus remains on the applicant to

establish on the evidence that the period of duration of the Care Order is appropriate, proportionate and necessary and that the

criteria under s 18(1) will continue for the period set out in the Care Order. There can be no default position and certainly nothing

akin to a presumption that the care order should be until the child reaches the age of 18. The necessity for such a period must be

established by the Child and Family Agency.

35. There is a clear line of jurisprudence which considers the rights of children where there was or is an unintentional failure of

parental duty and where it has been considered necessary to prefer the rights of the child over the parents or the family to ensure

the protection of the child’s welfare. It is clear that the Court must apply a test as to the proportionality of any order made to assure

the welfare of the child; the Court must go no further than is strictly necessary to assure the welfare of the child.

36. It is clear that the more far reaching and severe the interference proposed the stronger the reasons required to justify it. The

Court must attach particular importance to the best interests of the child which may override the rights of the parents. There should

not be a presumption in favour of permanent separation, and there is an obligation to ensure that measures taken are proportionate

to the risk.

37. Where the Court makes an order of limited duration it may, of its own motion or on the application of any person, extend the

operation of the order if the Court is satisfied that grounds for the making of a care order continue to exist with respect to the child.

Conclusions

38. Having regard to the facts, I conclude that on the balance of probabilities it has been established by the CFA that the health,

development and welfare of child A is likely to be avoidably impaired or neglected if she were returned to the care of her parents at

this time and that she requires care and protection which she is unlikely to receive unless a Care Order is made.

39. Because of the parents and in particular, the first named Respondent’s, failure to engage with the review process, Dr Mc C was

unaware of her continuing level of engagement with child A, her commitment to completing a parenting course, her undertaking to this

court to engage in family mediation and her engagement with these proceedings and with the Child in Care Review. In particular, I

regard the following as relevant considerations:-

a. In May 2013 the first and second named Respondents were assessed as having the capability of developing the

necessary capacity to care for child A.

b. It is in child A’s interest to have more contact with her parents and for them to be more involved in her life.

c. The first named Respondent, in particular, has made efforts to improve her parenting skills and has expressed openness

to mediation.

d. They have engaged with the court process (albeit belatedly on the second named Respondent’s part) and are open to

pursuing consistent contact with child A.

e. The parents completely disengaged from supports and no explanation has been given to the court about their failure to

re-engage with the social workers.

f. The parents have not yet demonstrated an ability or willingness to prioritise child A’s needs over their own needs and

relationship.

g. They are young and the first named Respondent has specific difficulties which require supports which were not

provided to her in the past. She has received only very limited speech and language therapy and has considerable

communication difficulties. Her engagement with the court shows that she is capable of decision making independently of

the second named Respondent and that she is maturing. Both the first named Respondent and the second named

Respondent may now have the ability and maturity to engage with a tailored plan to move towards reunification with child

A. 40. Notwithstanding the lack of certainty in child A’s long term care to date, she has not been adversely affected by the interim

nature of the orders to date and she is as yet unaware of and unaffected by her status as a child in care. Her situation is stable. At

this time she does not require certainty as to her legal status and I am not satisfied that there would be any adverse impact on child

A’s welfare at this time in making an order for a shorter duration than to her 18th birthday. However, child A is now in school and will

soon become aware that her circumstances are different to other children. As expressed by the Guardian, her welfare cannot be

paused to allow the parents an indefinite period in which to decide to engage.

41. In light of these factors, while I accept Dr Mc C’s opinion that the risks associated with the first named Respondent’s parenting

capacity outweigh her current strengths and that she lacks the parenting skills for good enough parenting now, I am not satisfied

that the Child and Family Agency has established at this time that it is necessary or proportionate that child A remain in the care of

the Child and Family Agency until she is 18.

42. I regard two years from now as a proportionate period to enable the parents to develop the skills necessary to provide good

enough parenting while not adversely impacting on child A’s welfare and I intend making a Care order for a period of two years from

today’s date.

Access

43. Child A will benefit from consistent and more structured access with her mother. This will also be necessary for her mother to

implement the skills she will acquire on her parenting course which will be necessary if she is to move towards reunification. Her father

should also resume access with child A and this must be done in a structured way. It would not be appropriate for child A to resume

access with her father if there were to a risk of a recurrence of the termination of access which has caused such distress for child A.

There must be an appropriate commitment from her father to maintaining a consistent stable relationship prior to the resumption of

access. Access to child A should be in accordance with section 37 of the Act.

Directions under section 47

44. A Plan for the next two years is to be drawn up and the court is to be updated on same in six weeks. The parents should be

aware that they are “in the last chance saloon” and if they do not agree to reasonable proposals in the plan, the court may of its

own motion or on the application of the CFA consider extending the duration of the period of the care order at that time.

45. The Child and Family Agency is to provide the first named Respondent and the second named Respondent with appropriate

therapeutic supports if they are willing to take same up. The Child and Family Agency is to ensure that the first named Respondent

has the services of an advocate to assist her in meaningfully engaging.

46. Ms LD and the first named Respondent will require family mediation to assist with this relationship. In due course, this needs to be

expanded to include the second named Respondent and Mr FC. This is to be provided and facilitated by the Child and Family Agency.

47. The first named Respondent requires speech and language therapy and an appropriate service is to be provided by the Child and

Family Agency.

48. If the parenting course the first named Respondent has secured a place on is not comprehensive, an appropriate parenting course

is to be provided by the Child and Family Agency to the first named Respondent .

49. An appropriate parenting course is to be provided by the Child and Family Agency to the second named Respondent .

50. The difficulties in the previous 12 month plan were apparent within 6 months and I direct that the matter will be re-entered for a

general review of progress in six months. The parents should be aware that, the court may of its own motion or on the application of

the Child and Family Agency consider extending the duration of the period of the care order at that time if no real progress towards

acquiring capacity to parent child A is being made.

51. The Guardian ad litem is to remain engaged until the general review in six months time.

52. The matter is to be re-entered by the Child and Family Agency on notice to the Guardian ad litem who is to be re-engaged in the

event of

a. Any placement change (planned or unplanned)

b. If the social worker or foster link worker becomes unallocated for more than 6 weeks

c. If the statutory Child in Care Review is not carried out.

53. I am satisfied that child A’s welfare requires the making of the above orders and that they are in accordance with her wishes.