Court grants Care Order for three children and fixes birth date for the eldest due to identity disputes.

Neutral Citation [2015] IEDC 4

AN CHUIRT DUICHE THE DISTRICT COURT

CHILD AND FAMILY AGENCY

Applicant

-And-

JN (deceased)

First Named Respondent

-And-

GA

Second Named Respondent

CHILD CARE ACT, 1991 SECTION 18 (1)

In the matter of Child A, Child B and Child C

INTRODUCTION

1. This is an application for a Care Order made in respect of three children under section 18 of the Child Care Act 1991(hereinafter

referred to as the 1991 Act). To preserve their identity I shall refer to them as Child A who appears to be fifteen years old, Child B

who is 13 years old and Child C who is ten years old.

2. The order sought by the applicant is a Care Order until each child has reached the age of eighteen years.

3. The father was represented in the proceedings by his solicitor.

4. The children’s wishes and interest were brought to the attention of the Court by the Guardian Ad Litem appointed by the Court in

this regard.

BACKGROUND

5. The children's deceased mother came from East Africa. Their father came from West Africa though he appears to have lived in

another European country for approximately eighteen years and is now a German citizen and has a German passport. The father has a

partner and a child in Germany. The mother came to Ireland in or around 1999. The mother and father appeared to have had

intermittent contact since that time but did not reside together as a couple continuously.

6. Child B and Child C were born in Ireland. Child A did not arrive in Ireland until 2006. She remained in her country of origin in the care

of her maternal aunt since she was nine month's old. Child A's migration to this country appears to have been traumatic for her. Up to

this time she believed that she was the child of her maternal aunt and that her cousins were her siblings. She had a different name

and believed herself to be older than the age portrayed on her birth certificate. It is noteworthy that the birth certificate in question

is certified as a true copy of an original birth certificate, issued on 29 March 2006. It cites a particular province in a West African

country as the place of birth and correctly identifies Child A's biological parents and states her date of birth to be 22 July 1999.

7. Child A believes this birth certificate to be false. She did not believe that her father was her biological parent until DNA tests,

undertaken by the Agency with the consent of the father in 2011, established that Child B and Child C were her full siblings. The

father informed the Child and Family Agency that Child A was born in Germany, though he was not there at that time. However no

alternative birth certificate has been produced to the Court at the date of hearing. Unfortunately Child A appears not to have any

bond with her father. Her bond with her deceased mother may also have been less than secure.

8. Following the death of their mother in December 2009 the children remained in the care of a family friend until their father came to

Ireland in or around January 2010 to take up his parental responsibilities. Prior to this the children appear to have had only

intermittent contact with their father.

9. It is also relevant that the parental relationship appears to have crossed both cultural and religious divides. The children have been

raised in the Muslim tradition until their mother’s death, although they were not religiously observant. The children were placed in

foster care, a trans-racial and trans-cultural placement with a white Irish foster carer where they have remained to date.

10. The children first of all came into the voluntary care of the Child and Family Agency in April 2010 when the father was arrested by

An Garda Síochána and detained for a number of weeks before he was extradited to another European country in April 29th 2010 for

drug trafficking offences. He was discharged from prison in 2012 but remained in Germany.

11. In July of 2010 the application first came before the Court for an Interim Care Order under the 1991 Act. Thereafter Sunday

extensions of that Interim Care Order were interspersed by a Care Orders and a Full Care Orders, one granted in May 2011 for six

months and the second granted in November 2011 for eighteen months. The Child and Family Agency hoped that family reunification

could be achieved on the release of the father from prison in Germany. However, this has not proved possible. The Child and Family

Agency sought a further Interim Care Order and a Care Order in December 2013.The Interim Care Order has been extended from time

to time until the hearing of this Care Order, which is now before the Court. The Child and Family Agency request that the Care Order

be granted until each child attains his or her majority. The application is supported by the children’s Guardian Ad Litem.

12. I am satisfied that the proceedings have been properly served on the respondent, the father.

JURISDICTION

13. This court has been properly seised in accordance with Article 13 of Council Regulation (EC) No 220112003. The relevant

jurisprudence is clear that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin

to that whereby a child automatically takes the domicile of his or her parents. The test adopted by the European Court is the place

which reflects some degree of integration by the child in a social and family environment in the country concerned. This depends upon

numerous factors, including the reasons for the family's stay in the country in question etc.

14. The mother's ordinary residence was in Ireland and Child A and Child B were born in Ireland and the family unit resided within the

Dublin Metropolitan District. The father had been appointed by this Court as their Legal Guardian in 2013. The parents lived apart with

intermittent contact by the father until the mother's death in 2009. The father expressed a wish to care for his children but this

desire was frustrated by his arrest in Ireland and incarceration in another European country until 2012 and since his release from

prison by other events. His interaction with the children has been of a very limited nature. Child A is fifteen years old and is a mature

minor who desires no contact or access with her father. All of the children remain in the care of the Child and Family Agency (CFA)

placed in a foster placement since April 2010. I am therefore satisfied that the Dublin Metropolitan District has jurisdiction to hear this

application.

15. The issues involved in this case reduce themselves to whether the facts adduced in evidence by the CFA meet the threshold of

section 18(1) (c) of the 1991 Act and whether the children's health development and welfare is likely to be avoidably impaired or

neglected by placing them in the care of their father either in Ireland or another European country or whether they each require care

or protection which they are unlikely to receive unless the Court makes an order under this section. The Court must also consider the

question of the proportionality of any order it may make, namely whether a Supervision Order would satisfy the needs of the children

having regard to the rights of the children and the father whether under the Constitution or otherwise or whether a Care Order for a

lesser duration would adequately assure their needs.

16. On the day of hearing it was indicated to the Court that the father now consents to the making of a Care Order in respect of

each of the children and acknowledges the desire of the children to remain in Ireland in their current foster placement. Through his

solicitor he signified his consent to the making of a Care Order in respect of each child until they each attain the age 18 years.

17. The 'Summary Statement' and outline of the proposed 'Finding of Facts' document, grounding the Child and Family Agency

application and prepared in accordance with the Court's practice direction, has been filed. The solicitor for the father has admitted

the facts set out at paragraphs 1-28 without necessity for formal proof, subject to the deletion of paragraph 2 and amendments as

recorded at paragraphs 21, 25 and 26. In essence this acknowledges that the father is not in a position to meet the physical or

emotional needs of his children at this time.

18. I have heard the evidence of

a) TC, the Social Worker;

b) CC, the Guardian Ad Litem.

VIEW OF THE CHILDREN

19 The views of each of the children have been considered by the Court and views were received by the Court through their Guardian

Ad Litem. At this time none of the children wish to covey their views directly to the Court. Child A desires no contact with her father.

All of the children have confirmed that they wished to continue to reside with their current foster carer and they do not wish to

reside with their father. Child A and Child B have high therapeutic needs.

RECOMMENDATIONS OF THE GUARDIAN

20 The Guardian Ad Litem (GAL) indicated to the Court her support for the making of a full Care Order in respect of the younger two

children and recommended an order of one year duration for Child A so as to facilitate the CFA resolving the question over the birth

certificate for the child. She was also concerned that the CFA should take necessary steps to secure her legal status in this

jurisdiction or in Europe (through a German birth certificate which the father believes exists). The father originally expressed the

intent to move to Ireland with his current partner before the end of January 2013. However he was only able to maintain phone

contact with the children between January and December 2013 when he returned once more to Ireland, briefly returning to another

European country in February 2014 to seek dental treatment. The personal circumstances of the father may have dictated this

difficult position. However the reality appears to be that he has not remained in Ireland long enough to form a bond with the children

for reunification or to complete a comprehensive parenting capacity assessment in this context. It is her view that the father's

access with the children should be at the discretion of the CFA and should reflect the best interests of the children in light of their

developmental, cultural and therapeutic needs.

FINDINGS ON FACT OF EVIDENCE

21 Having heard the evidence set out above, having considered the findings of fact submitted by the HSE and admitted on behalf of

the father to be proven and taken into account and having considered the views, interests and wishes of the children (indirectly

expressed to the Court through the GAL) I am satisfied that in respect of each child the threshold criteria under section 18 (1) (c) of

the 1991 Act are met and that each child's health, development and welfare would suffer if a Care Order was not granted. The

duration of the Care Order shall be, in the case of each child, until they attain the age of eighteen years.

22 My reasons for making this order for this duration are as follows;

a) Child B and Child C have therapeutic needs which must be met during their minority;

b) Child A also has high therapeutic needs arising from her migration from Africa from the family which she thought to be

her birth family. Her experience of being brought to this country under what she understood to be false pretences, the

severance of her attachment from her primary carer and the death of her mother have had very unsettling effects for her.

The impermanence of a Care Order for one year is not likely to assist her therapeutic needs. The legitimate concerns of

the Guardian Ad Litem however can be addressed through targeted directions under section 47 of the 1991 Act.

23. I am satisfied this decision is proportionate for the following reasons:

a) There is no evidence to support the children's return to their father under a Supervision Order; and

b) Child A had previously expressed the desire to return to her country of origin in East Africa and the care of her

maternal aunt. However this has not proved possible and her aunt has expressed the desire for her to finish her education

in Ireland. I am satisfied on the evidence of that, that an order for a lesser duration for Child A than that made for her

other siblings, with whom she resides, would heighten her sense of difference from her siblings and therefore be inimical to

her long term welfare.

24. I approve the care plan for each child and note the GAL's approval of the same. I note that the CFA has explored the possibility

for a placement for the children under section 36 of the 1991 Act with family or friends of the deceased mother and that same has

not been possible. I note that the children are in a cross cultural placement, but are placed together and that the evidence is that

they are doing well in this placement which is meeting their needs. I also note the wish of the father that they be raised as

Christians, and the commitment of the CFA and the foster carer that they are raised with an understanding and respect of both their

religious and cultural heritages. I note the views of the GAL that the therapeutic needs of the children at this time are a priority and

that their cultural and identity are adequately addressed in their individual care plans.

ACCESS BY THE FATHER

25. Having regard to the complex issues in the case, as outlined in the reports admitted and evidence adduced, I direct that access

between each child and their father be carefully measured within the parameters of to section 37 of the 1991 Act having regard to

the best of the interests of each individual child.

SECTION 47 DIRECTIONS

26. Under section 47 of the 1991 Act I direct that the case is to be re- entered before the Court by the CFA on notice to the GAL in

the event that:

a) A Social Worker of Fostering Link Worker becomes unallocated to the case for a period of six weeks;

b) Should there be any planned or unplanned change of current foster placement of the children;

c) Should the Statutory Child in Care Review for each child fail to be carried out for any reason in light of the vulnerable

position of the children as evidentially adduced;

d) The GAL to be discharged on the making of this order but reappointed six weeks in advance of any re-entry of the

case before the Court for any reason;

e) If the GAL in this case is no longer available then the CFA to bring an application to the Court to have a GAL appointed

pursuant to section 23 of the 1991 Act;

f) The case to be re-entered before the Court;

1) 22 July 2015 for the purposes of After Care Review’ for Child A and to consider further the issue of her birth

certificate details should same remain disputed. To consider the issue of her residency status in this jurisdiction (her

right to remain in this jurisdiction after she is no longer subject to a Care Order) as it remains unresolved at this

time;

2) 13 April 2018 for the purposes of 'After Care Review' Child B should he remain in the care of the CFA at that time;

and

3) 14 December 2020 for the purposes of 'After Care Review' Child C should he remain in the care of the CFA at that

time.

g) Pending clarification of Child A’s birth certificate details the Court in accordance with section 32 of the 1991 Act hereby determines

that 22 July 1999 as certified in the birth Certificate from [Masaka Uganda] is deemed to be the correct date of birth of Child A;

h) CFA to provide each child with all therapeutic services outlined in their care plan or as may be deemed necessary following a

statutory Child in Care Review;

i) CFA to provide the father with any services deemed necessary to assist him in meaningful participation in the Children statutory

reviews and in restoring his relationship with the children whether through access or otherwise.

Rosemary Horgan

District Court Judge