District Court allows parents to take children on holiday abroad under Child Care Act 1991 s.47.

[2015] IEDC 03

CHÚIRT DÚICHE THE DISTRICT COURT

Child and Family Agency (CFA)

Applicant

-AND-

M (mother) and J (father)

Respondents

In the matter of A and B, children.

GAL to A and B

1. This is an application under section 47 of the Child Care Act 1991, for directions in respect of child A and B.

2. Section 47 of the Child Care Act 1991 provides as follows:

“47.—Where a child is in the care of the Child and Family Agency, the

District Court may, of its own motion or on the application of any person, give such directions and make such order on

any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order.

The direction sought in respect of each child is “that [the child] be permitted to travel outside of the jurisdiction for the purposes of

taking a holiday with [the child’s] foster carers to [country X] from the end of May 2015 to the start of June 2015”.

3. The notices of application are dated late May 2015, and it is assumed that the said notices issued on that day. The applications

were issued for hearing in late May 2015, and were heard on that date. The court reserved its decision to noon on the following day.

4. In this application, the CFA were represented by their solicitor. The allocated social worker and the social work team leader were

present throughout the hearing. The mother was represented by counsel, instructed by her solicitor. The father was represented by

counsel, instructed by his solicitor. The GAL was represented by counsel, instructed by her solicitor.

5. There has been significant involvement by the CFA with this family, including the children the subject matter of this application,

and others.

6. A and B are currently in the care of the CFA, on foot of interim care orders pursuant to section 17 of the Child Care Act 1991,

which were granted on in 2014, which have subsequently been extended on a considerable number of occasions.

7. There has been a considerable amount of litigation between the parties in respect of a variety of issues concerning this family, and

these children in particular. The court has to date been unable to proceed to a full hearing of the application by the CFA for a “full”

care order under section 18 of the Child Care Act 1991 in respect of A and B. Hearing dates have previously been set and vacated.

The parties have today indicated that they wish the court to set new hearing dates. It will be a number of months before such a

hearing can occur. When it does occur it is anticipated that the complexity of the case is such and the volume of evidence (including

expert evidence) will be such that the hearing of the full care order application will take several weeks.

8. There have been no previous applications of the nature of that being dealt with in this decision. During the period that A and B

have been in the care of the CFA, they have been on holiday previously with their foster carers, including a holiday abroad. The

parents have consented to such holidays occurring.

9. The parents are not consenting to the holiday proposed for the children with the foster carers, which is proposed will commence in

late May 2015 i.e. in or about 3 days after the hearing of the application, and 9 days after the issue of the application. The

application for a direction, effectively to permit the proposed holiday to proceed, has been fully contested.

10. I have heard evidence from D, the social worker allocated to A and B, from the GAL and from each of the parents, and I have

heard what was submitted by their respective legal representative .On the evidence I am satisfied that

(a) The foster carers booked a holiday in March 2015, in country X, for themselves, A and B, and other children.

The foster carers are what is referred to by the CFA as “private foster carers”, i.e. engaged by an agency other that the

CFA.

(b) Neither the foster carers nor their agency informed the CFA of the proposed holiday until 05.05.15. On that date, the

foster carer’s fostering link social worker (employed by the “private” agency) informed the allocated worker of the

proposed holiday.

(c) The parents were not informed of the proposed holiday until 10.05.15. On that date, they were informed of the

proposed holiday by the allocated social worker. The parents immediately stated that they would not consent to the

proposed holiday.

(d) The parents were contacted again by the allocated social worker on 15.05.15, when they confirmed that they would

not consent to the proposed holiday.

(e) The parents were subsequently contacted by staff of the private agency regarding consent to the proposed holiday,

where the parents repeated that they would not consent to the proposed holiday.

(f) The children were informed of the proposed holiday in considerable detail by the foster carers without consultation

with the CFA. While it is not clear exactly when the children were informed, it was simultaneous with or before the

parents were informed and their consent sought. The children have been informed that their parents are not consenting

to the proposed holiday.

(g) At an access visit on late may 2015 one of the children asked the parents to consent to the proposed holiday.

11. It is accepted that where children are in the care of the CFA on interim care orders (as these children are) then parental consent

is required for the children to travel out of the jurisdiction, and that if that parental consent is not forthcoming or available, then an

order must be obtained from this court dispensing with that consent.

12. The court inquired as to whether there was any protocol or procedure in place regarding foster carers taking children on holiday.

Neither the allocated social worker nor the GAL was aware of any such protocol or procedure. As there was no witness called from

the private agency, and as the foster carers did not give evidence, the court was unable to establish from them as to whether there

was any such protocol in existence in the private agency.

13. Both the allocated social worker and the GAL gave evidence that in their opinion it would be in the interests and the welfare of

the children that they would be permitted to go on the proposed holiday. In general terms, they are of the opinion that children

placed with foster carers should have the benefit of being placed with a family including being included in family holidays, and that

being excluded from such a holiday would promote a sense of not belonging, to the detriment of the children. Specifically, in

circumstances where the children are already aware of the proposed holiday, and are looking forward to it with great excitement, that

it would be detrimental to their interest and welfare to exclude them from it. Both acknowledged that they were aware of the reasons

advanced by the parents for their refusal to consent to the proposed holiday, but did not accept that these reasons were valid or

sufficient to ground a refusal to permit the children to go on the proposed holiday.

14. Both parents gave evidence as to their reasons for not consenting to the proposed holiday. Their expressed reasons must be

understood in the context of what is a long running, highly contested application, involving very serious allegations which are

vigorously denied, and which is slowly but inexorably proceeding to a hearing of an application to take their children in to the care of

the state until they reach the age of 18 years. They feel that while this process is ongoing, whether it leads to a full care order or

otherwise, that they are losing their relationship with their children (in particular B who presently is not attending access), that in

effect they are losing their children.

15. It is not disputed that there is a considerable disparity between the means and lifestyle of the parents and the foster carers, the

foster carers being much “better off”. The children in interim care have access to things which they would not have access to in the

care of the parents. One of the many things that the children have access to with the foster parents is holidays abroad. The parents

are of the opinion that this disparity of means and lifestyle is affecting the children, influencing them (particularly B) to favour

remaining in the care of the foster carers.

16. Furthermore, the parents are of the opinion that the foster carers are also influencing B against contact with them, that this

influence is succeeding, and that the intention of this is to ensure that B remains with the foster carers. The parents contend that

the current refusal of B to attend access with them corresponds with the occurrence of the last holiday that B took with the foster

carers.

17. The parents in addition strongly express the opinion that neither the CFA nor the GAL are taking sufficient steps to bring about

the restoration of contact between B and the parents.

18. The parents view this particular holiday as further establishing in the minds of the children the disparity of lifestyle thereby

causing the children to be less favourable to returning to their care.

19. The parents specifically and strongly express the opinion that if the children do not go on the proposed holiday, that in the period

that they are consequently not in the care of the foster carers, the influence of the foster carers on the children will wane to the

extent that B will immediately resume attending access.

20. The parents also complain about the manner in which they and the children have been informed of the proposed holiday and in

particular the timing of this, although this is not advanced as any part of their reasons for refusal of consent.

21. I accept that the evidence of the parents is to ground their contention that it is not in the interests of the welfare of the children

to be exposed to the “passive material influence” arising from the disparity of lifestyle, and that it is not in the interests of the

welfare of the children to be exposed to the “active” influence of the foster carers during the holiday against contact with the

parents (particularly B). Rather it is in the interests of the welfare of the children not to go on the holiday, and absent the influences

of the foster carers, resume contact.

22. For the avoidance of doubt, the allocated social worker and the GAL both expressed the opinion that the foster carers are not

seeking to influence the children in the manner apprehended by the parents, and that they and the foster carers are taking all

reasonable steps to promote and re-establish contact between the parents and child B.

23. In all decisions under the Child Care Act 1991, section 24 of the Child Care Act 1991 applies. Section 24 provides:

24.—In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having

regard to the rights and duties of parents, whether under the Constitution or otherwise, shall—

(a) regard the welfare of the child as the first and paramount consideration, and

(b) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of

the child.

24. The making of an interim care order under section 17 of the Child Care Act 1991 requires that the court be satisfied that there is

reasonable cause to believe that owing to circumstances which exist or have existed that it is necessary for the protection of the

child's health and welfare that they be placed or maintained in the care of the CFA pending the determination of an application for a

care order. The interim care order and the extensions of it have been made on that basis, and as a result the children have been and

remain in the care of the CFA. Interim care orders do not have the effect of vesting parental responsibility on the CFA or its agents.

The rights of parents must be respected by the CFA at all times in the context of whatever type of order (or none) which requires

that their children be in the care of the CFA. The court in reaching its decision in this matter acknowledges those parental rights and

has regard to them as directed by section 24.

25. The wishes of the children are clear – they wish to go on the proposed holiday. This is scarcely a surprise. Children in general like

to go on holidays, and the proposed holiday as described would be attractive to any child, and particularly to the age of these

children (i.e in single digits). The children have had the proposed holiday described to them in detail, as would be usual when children

are to be brought on holiday. The court in reaching its decision in this matter acknowledges those wishes and has regard to them as

directed by section 24 of the Child Care Act 1991.

26. Pursuant to section 24 of the Child Care Act 1991, the court must "regard the welfare of the child as the first and paramount

consideration". This requirement is undisturbed (and if anything strengthened) by the recent constitutional amendment. The court

must therefore in its decision determine where the welfare of the children lies.

27. The welfare of the children has not been well served in this matter. Through no fault of their own, the children have been

unnecessarily and avoidably involved in matters concerning the proposed holiday. They have been informed of the proposed holiday

prior to any agreement or court order permitting the proposed holiday to proceed. They have been informed of their parents’ refusal

to consent. Regardless of the outcome of this application, they cannot but be aware of the existence of a difference of opinion

between the foster carers and their parents and between the CFA and their parents, and the tension that this creates. There is no

necessity for them to be aware of any of this. It is not in the interest of their welfare to be so aware. It is not in the interests of

their welfare that the tension that arises between the parents and the CFA and its agents is exacerbated by the fact that the

children are already aware of the proposed holiday. If the matter of consent to the proposed holiday had been dealt with in a timely

manner, then it is to be hoped that they would not have become aware of any of these issues.

28. It would be proper and appropriate that the consent of parents would be sought before children are informed of a proposed

holiday, and that any dispute is resolved before they are informed of anything. I find it extraordinary that the CFA witness was

unaware of any protocol in relation to these matters. As stated above, in the absence of a witness from the private agency, I am

unaware of whether that agency has any protocol in relation to these matters. If it has such a protocol, then it would appear that

such a protocol was either not followed or was insufficient to address the issues that I identified. If as appears more likely, there is no

such protocol, then it appears to me that such a protocol is urgently required in order to avoid the unnecessary occurrence of the

adverse affect on the welfare of children that has occurred in this case.

29. While acknowledging that the existence of a protocol may not have avoided the necessity of this application being heard, it

should have avoided it being heard in a context where the welfare of the children has already been adversely affected.

30. The court, in making its welfare decision in this case, in addition to what might be termed the "straight” decision on whether it is

in the interests of the welfare of the children to go on the proposed holiday, the court is effectively being asked to pick up the pieces

after the debacle that has resulted in the parents not being informed of the proposed holiday until after the children were informed,

and the parents not being informed until a very short time before it would be necessary to either have their consent or to have this

hearing.

31. I do not regard it as a sufficient response to the above to simply say "we are where we are", or "lessons must be learned". It is

reprehensible that the situation has arisen where the children have become involved as set out above. In the absence of evidence of

any intent on the part of anyone involved, what has occurred is a systematic failure and / or a failure of professional standards which

is unacceptable and ought to be addressed forthwith.

32. While none of the above is cited by the parents as contributing to their refusal to consent to the proposed holiday, in my view it

cannot but have exacerbated the suspicions and perceptions (whether well founded or otherwise) of the parents regarding the care

of their children and the role of the foster carers and the professionals in their care.

33. In circumstances where the interests and welfare of the children has already been unavoidably but irretrievably adversely

affected by what has occurred in relation to this proposed holiday, the court must nevertheless make a decision as to what is in the

interests of the welfare of the children regarding the proposed holiday.

34. I noted the evidence of their parents and the reasons advanced by them for their refusal to consent to the children going on the

proposed holiday. I accept that the views expressed by them and that the opinions held by them are genuinely held, and I accept

that their refusal to consent to the proposed holiday is not motivated by mala fides, spite, or other unworthy motivation.

35. There is however no admissible evidence to support their contentions regarding what I have called the "active" influence of the

foster carers. The parents assertion in relation to the "passive" influence on the lifestyle disparity acting as an influence against

reunification is not supported by the professional witnesses. It may ultimately be impossible to come to any decision as to the affect

that this may have on the children; certainly I do believe that the idea that the disparity in lifestyle might have such an affect cannot

be automatically dismissed.

36. By definition, children who are the subject of interim care orders are placed in foster care (generally). The number of available

foster care placements is limited. My understanding is that in selecting foster placements consideration is given to various matters,

including family structure, location, cultural issues etc. In that context, disparity of lifestyle may merit some consideration, but is

unlikely to dictate the actual placement.

37. What I identify as the central issue for the parents is that the removal of the children from the influence of the foster parents,

even for the short period of the proposed holiday, would bring about a change in B’s attitude to and attendance at access.

Regardless of what arrangements might be made by the foster carers of the proposed holiday this does not proceed, (i.e. accepting

that the children would in fact go to respite care if the proposed holiday does not proceed), I do not accept that there is any

likelihood that what the parents might then wish to occur in respect of access would in fact occur. Regrettably, I am of the view that

what is more likely to happen if the proposed holiday does not proceed, and that no matter how that were to be presented to B, she

will nevertheless attribute responsibility for that occurrence to the parents, which will not support the resumption or continuance of

access.

38. While the above conclusion is reached in the context of what has actually happened in this case, I am of the view that even if

the children had not been informed of the holiday, and if the children were placed in respite care for the duration of the holiday, that

it is unlikely that it itself would bring about a change in B’s attitude to access, as speculated by the parents.

39. There are no other issues identified as to why the proposed holiday would not be in the interests of the welfare of the children.

40. I am satisfied having taken into account all of the matters that the court is required to take into account pursuant to section 24

of the Child Care Act 1991 that the court should grant the order requested, and I do so.

41. In the course of the hearing, the parties referred to how the children are to be informed of the decision of the court. I direct that

the children are to be informed appropriately of the decision of the court, in the context of what is set out in this decision. It will be a

considerable task to do so with children of this age. They must be appropriately informed of the findings of the court regarding the

genuine motivation of the parents’ refusal to consent to the proposed holiday. They must also be informed of this court’s very strong

view that the entire issue in relation to this holiday was not properly dealt with, and was not dealt with in a timely way. They must

also be informed in an appropriate way that the order of the court is not a victory or defeat for anyone. The essence of these

directions is that in so far as it is now possible to do so, the children are relieved of any burden imposed upon them by any impression

of tension between their parents, their foster carers, and the various professions involved in this case.

42. I note that in the course of the hearing, that the solicitor for the CFA offered an apology to the parents for the manner in which

matters surrounding the proposed holiday were dealt with, recognising that these matters could have been dealt with in a much

better way. I regard that apology as appropriate.

District Court Judge

Brendan Toale