District Court extends Child B's Care Order to age 18, rejecting mother's request for only one year.

[2015] IEDC 5

AN CHUIRT DUICHE THE DISTRICT COURT

THE CHILD AND FAMILY AGENCY

APPLICANT

-AND-

R.T.

RESPONDENT

CHILD CARE ACT, 1991- SECTION 18(1)

IN THE MATTER OF B., a Child

Background:

1. This is an application pursuant to section 18 of the Child Care Act 1991 (hereinafter referred to as ‘the Act of 1991’) by the

Applicant Child B and the Child and Family Agency (the Agency) for a Care Order in respect of Child B, now aged four years and two

months old.

2. The Respondent mother is legally represented by a solicitor of the Legal Aid Board. A Guardian ad Litem has been appointed to

represent the wishes and welfare of Child B, the subject of these proceedings. Child B is also legally represented. All parties above

were present and represented at the Hearing.

3. Child B was born in late September 2011 and was removed from her mother’s care approximately 4 days after her birth to a

placement where Child B continues to reside and where her two older siblings are also placed. The two older siblings are subject to full

Care Orders having been made in relation to them on the 5th day of April 2012 for the duration of their minority up to their eighteenth

birthdays.

4. At the outset of these proceedings it was advised to the Court that all parties accept the Findings of Fact and law applied as set

out in the judgement of President Rosemary Horgan, dated the 5th day of April 2012, which is attached. The effect of this judgement

was that a Care Order was made in relation to Child B, the subject child of this application for a period of three years from the 5th

day of April 2012. This order expired on the 5th day of April 2015 and the child has remained in care on Interim Care Orders up to this

date. The other effect of this judgement was that Care Orders in relation to the Child B’s two older siblings, with whom Child B is

placed, up to the age of eighteen.

5. The matter is now for hearing. The Agency are seeking a Care Order to be made for the remainder of the Child B’s minority up to

the age of 18 years old. The Respondent mother contests this application and states through her legal advisers that the threshold

criteria for a Care Order to be made at this time currently exists and she is not in a position to resume care of the child at this time

but in light of her improved and improving circumstances the only proportionate order that should be made is a Care Order for a

further one year period.

Evidence:

6. Evidence was heard over a period of six days with the hearings beginning on the 30th September and commencing on the 8th

December 2015.

7. Evidence was adduced and given to the Court by the following:

a. BJ, current allocated social worker;

b. SN, access worker;

c. Dr CI;

d. Ms AO, previously allocated social worker who completed the Parenting capacity assessment;

e. DMcH, Guardian ad liem;

f. BC, Saol Project;

g. Respondent mother.

8. A letter from current supported housing unit, dated the 29th September 2015, and an e-mail from same unit, dated 1st October

2015, was admitted without the necessity for formal proof.

9. A booklet of expert reports and documents were before the Court and agreed to be admitted and subjected to cross examination

when evidence was given.

10. Since Child B was taken into care on the 4th day of October 2011, the Respondent mother has given birth to another child born in

March 2014. The mother is parenting and caring for the child full time.

Finding of Facts;

11. President Horgan’s judgement, on the 5th April 2012, sets out the facts as of that time. This is accepted by all parties. The

history contained in that judgement is agreed and not disputed.

• The Respondent mother was released from prison in March 2013.

• The Respondent mother is residing in supported accommodation and has been since being released from prison in

supported accommodation. The mother wishes to secure her own independent accommodation.

• The Respondent mother has completed Parenting skill courses.

• The Respondent mother has successfully remained off alcohol, save for one lapse over the last period since 12th

April 2012, and I accept the mother’s evidence in this regard.

• The Respondent mother still requires support to attend access with Child B and has been provided with such

support.

• The Respondent mother knows that access attendance is essential to building a bond with Child B. I find as a fact

that in spite of supports being provided and through her personal circumstances the Respondent mother has not

prioritised attendance at access.

• The Respondent mother has not been in a position to attend all scheduled access visits with Child B.

• Child B is happy and settled in the placement where two of her siblings also reside and has a secure attachment

with the foster carers who have a good relationship with the Respondent mother.

• The Respondent mother states that she would like counselling to deal with her past behaviours.

• The Respondent mother is engaging in a purposeful manner with the Saol Project who provides her with life

counselling skills, routine, work/ self development opportunities.

• The Respondent mother she is currently building a bond with Child B and that this is work in progress. The bond is

not yet secure.

• The Guardian ad Litem supports a Care Order until Child B is 18 years old, with a court review in 2 years.

The Law

12. The Law in this area includes constitutional and convention rights of the parent and the child and the application of the Child Care

Act 1991. I do not propose to state the Law save to highlight that the Court has an overriding duty to the welfare of the child and to

apply Article 42A of the Constitution.

13. Legal principles applicable have been ventilated in decisions of the Irish Courts and the Court of Human Rights.

14. To quote from one case that deals with some of the legal principles applicable in this area of law is the decision of the Court of

Human Rights; Kutzner v Germany delivered 26 the February 2002 (application no. 46544/99)….

“A care order should in principle be regarded as a temporary measure , to be discontinued as soon as circumstances

permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the

natural parents and the child”…

a care order constitutes “ a serious interference in the family life”…

“However consideration of what is in the best interest of the child is in any event of crucial importance”….

“the child’s interest in not undergoing further de facto changes to its family situation may prevail over the parents’

interest in seeking the family reunited”

THRESHOLD CRITERIA FOR CARE ORDER

15. Section 18 of the Act of 1991 sets out the criteria for taking a child into care.

(a) the child has been or is being assaulted, ill-treated, neglected or sexually abused;

(b) the child’s health development or welfare has been or is being avoidably impaired or neglected;

(c) the child’s health development or welfare is likely to be avoidably impaired or neglected;

and that the child requires care or protection which he is unlikely to receive unless the court makes an order.

16. Accordingly the Agency must evidentially establish the need to intervene; the standard of proof is on the balance of probabilities.

17. In this case the Agency are seeking the Care Order specifically under section 18 (1) (c) on the basis that the child's health,

development and welfare is likely to be avoidably impaired or neglected if the child is returned to the care of her mother at this time.

18. The second requirement of section 18 is for the Agency to establish that the child requires care or protection which he/she is

unlikely to receive unless the Court makes a Care Order in respect of the child. The Court must determine the proportionate order to

protect the child from harm and must place the welfare of the child as the first and paramount consideration in accordance with

section 24 of the Act of 1991.

Decision:

19. Applying the Law to the facts of this case the Court is satisfied to make a Care Order pursuant to section 18 (1) ( c) for the

period of the Child B’s minority, the Court is satisfied that this Order affords a proportionate response to the circumstances of this

case where a secure bond has yet to be established between the child and the mother.

20. The Court also highlights that on approach of each statutory child in care review, Family Reunification must be considered. The

Court is inserting this case for Court Review in 2 years time and inserting the case for mention date 6 months in advance of the 2

year Court Review for the purpose of the Respondent mother filing an application under section 22 of the Act; if the mother is then in

a position to request family reunification in accordance with the welfare of the child at that time.

21. The Court orders, pursuant to section 18 ( 1) ( c), a Care Order until the 29th day of September 2029 and directs, pursuant to

section 47 of the Act, as follows:

a. Court review listed on the 14th day of December 2017. Guardian ad Litem to be reappointed 4 weeks in advance.

b. For mention date before the Court on the 14th day of June 2017 for purpose of Mother filing an Application under

section 22 of the Act and seeking hearing dates for this Application. Guardian ad Litem reappointed 4 weeks in

advance of this date.

c. Access pursuant to section 37 of the Act to include, in particular, mother, sibling and extended family including

maternal grandmother.

d. Agency to support the Respondent mother in sourcing therapy, identified by Dr CI, in relation to her personal

history.

e. Guardian ad Litem to be reappointed without further Court Order and matter re-entered on notice to the

Respondent mother in the event that any of the following occurs:

i. Long term matching of the current placement is not concluded within 6 months of the 15th December

2015.

ii. Any change in placement planned or unplanned

iii. If there is no allocated social worker/ fostering link social worker for a period of 4 weeks

iv. If statutory child in care reviews (to include consideration of Family Reunification) do not take place

in accordance with the statutory timetable.

f. Court review on Child B’s 16th Birthday for allocation of After Care Worker listed in court on the 29th September

2027. Guardian ad Litem to be reappointed 4 weeks in advance of this date.

g. Court review 8 months before Child B’s 18th Birthday for After Care plan. Guardian ad Litem to be reappointed 4

weeks in advance of this date. Court list 29th day of February 2029.

h. Agency to provide the child with life story work at an appropriate time in an age appropriate manner.

i. Guardian ad Litem to be discharged in relation to these proceedings with effect from today.

j. In the event that re-entry is necessary as a result of any of these Directions or in any event and the current

Guardian ad Litem is either no longer practising or is not available then Agency to make application pursuant to

section 26 of the Act on notice to the Respondent mother for the appointment of a Guardian.

k. The Agency to support the child in having knowledge of the child’s identity and culture.

22. I am also mindful that the Agency will make further applications to this Court to ensure the rights of the child if future

circumstances arise which come to their concern.

23. Having regard to the requirements of section 24 of the Act of 1991, to regard the welfare of the child as the first and paramount

consideration and in so far as practicable to give due consideration to the wishes and welfare of the child, I have noted the views

and evidence of the Guardian ad Litem. I have noted the opinion of the Guardian ad Litem and in light of the facts of this case and

having also carefully considered the rights and duties of the Respondent mother and the subject child under the Constitution or

otherwise in reaching the decision in this matter.

24. It is to be noted that any publication and/or broadcast of this Judgement be in accordance with law and in particular section 31

of the Act of 1991.

Marie Quirke

District Court Judge

14th day of December 2015