District Court dismisses foster carers' applications to return a child, citing the child's best interests and lack of professional evidence.

[2015] IEDC 07

CHÚIRT DÚICHE THE DISTRICT COURT

CHILD AND FAMILY AGENCY

APPLICANT

-AND-

AMC & TB

RESPONDENTS

-AND-

FOSTER CARER 1 & 2

MOVING PARTY

INTRODUCTION

1. This is an application by Agency approved Foster Carers seeking four separate relief’s under the Child Care Act, 1991 (hereinafter

referred to as the 1991 Act) in respect of a child who had been placed in their care under a short term fostering contract. This

placement endured for some seventeen months but was ultimately not approved as the child’s long term placement. The child now

resides in a long term approved relative foster placement.

2. The Foster Carers have not applied for or been added to these proceedings as a party Respondent. However, they have a prima

facia statutory entitlement to seek the relief’s claimed namely; an application for an Order under section 22 of the 1991 Act to vary

or discharge orders already made by the Court; an application under section 27 requesting the Court to procure a Report; to wit a

second medical opinion concerning the diagnoses of a Consultant Child Psychiatrist concerning the child; an application under section

37 seeking an Order for access to the child and lastly; an Order under section 47 seeking the Court’s directions. No objection has

been raised by the Agency in this context and no submissions received have challenged the locus standi of the moving parties to

proceed without being added as party Respondents for the purpose of these applications.

3. The moving parties will be referred to respectively as Foster Carer 1 and 2 and the child will be referred to as Child A in order to

protect the privacy of each of the parties to these proceedings and the child, the subject matter of these proceedings. These

proceedings were heard in camera and nothing must be reported concerning this case which would serve to identify the child, the

subject matter of these proceedings, the parents or any of the Agency Foster Carers. These proceedings are governed by section 29,

and section 31 of the 1991 Act.

4. I am mindful that when determining the appropriate disposition for a child, the Court must have regard to what is in the child’s best

interests. To do so, it must have all available and relevant evidence. I am satisfied that I have received such evidence from the

Agency and the Guardian Ad Litem for the child. The Applicants have not adduced professional psychological evidence but have

produced a Report from their GP which has been admitted into evidence without further proof and also adduced evidence of the Public

Health Nurse who monitored the care of the child while in their care. The Applicants request to the Court to procure a second medical

opinion.

EVIDENCE RECEIVED

5. The Report of Dr. O’M a Consultant Child and Adolescent Psychiatrist who is an expert in Foetal Alcohol Syndrome (FAS) and

Alcohol-Related Neurodevelopment Disorder (ARND) was admitted without further proof as was the Report of the GP. I heard the

evidence from five witnesses in connection with this application, namely:

a) Dr.HG, Attachment Specialist;

b) ML, the Guardian Ad Litem for the child;

c) NH, Public Health Nurse;

d) Foster Carer 1;

e) LM, Allocated Social Worker from February 2015.

I have had the benefit of and carefully considered the legal submissions of the parties.

PLACEMENT HISTORY

6. Foster Carer 1 and 2 were already trained and experienced Foster Carers when they entered into a Foster Care Contract with the

Agency in January 2013. They agreed to take the child, the subject matter of these proceedings, into their home and care for her in a

short term foster placement. They agreed to fulfil the duties imposed on them under Article 16 of the Child Care (Placement of

Children in Foster Care) Regulations, 1995 and to co-operate with the Agency in the care and upbringing of the child. They also

agreed to attend training under Article 15 of the Child Care (Placement of Children in Foster Care) Regulations 1995 as required.

7. In July 2013 long term placement plans for the child were discussed with Foster Carers 1 and 2. They were informed that a long

term placement with a Kinship Carer (who was an approved relative Foster Carer to some of the child’s siblings) was mooted. This

proposal was progressed to the point of approval by the Fostering Committee. This plan was suspended however, due to a terminal

illness within the family of the Kinship Foster Carer. Foster Carers 1 and 2 were advised that three other possibilities for the child’s

long term placement remained in play in February 2014. One of these options was long term placement with them as long term carers

and another option was placement with another foster carer who was caring for one of the child’s half siblings.

8. The child, the subject matter of these proceedings, suffered from neonatal withdrawal syndrome following her birth in August 2011.

In light of the child’s known history of prenatal exposure to substance abuse and concerning reports of a complex pattern of

behavioural and developmental difficulties, the Guardian Ad Litem for the child suggested procuring a Foetal Alcohol Syndrome (FAS)

and Alcohol-Related Neurodevelopment Disorder (ARND) evaluation from an appropriately qualified expert in the field. The Guardian Ad

Litem wished to assess the full range of damage to the child from prenatal alcohol or substance exposure in order to identify

appropriate remediation services and therapies necessary to ameliorate the presenting problems for the child.

9. The Agency procured a Report from a Consultant Child and Adolescent Psychiatrist who is an expert in Foetal Alcohol Syndrome

(FAS) and Alcohol-Related Neurodevelopment Disorder (ARND) in or about April 2014. This Report was adduced in evidence at the

section 18 Care Application.

10. This FAS/ARND assessment concluded that the child showed evidence of neonatal abstinence syndrome following birth which was

time limited. However, as a result of this prenatal damage the child suffered from a neurodevelopment disorder as well as a social

communication disorder. In addition to which the child exhibited a reactive attachment disorder within the ambivalent avoidant and

disorganised attachment paradigm. The Psychiatrist concluded that with such a complex array of needs the child required a lot of

interventions, including ophthalmology, speech and language therapy, occupational therapy and physiotherapy requiring follow-up

assessment with a child neuro-psychiatrist and treatment to address the reactive attachment disorder. The Foster Carers

participated in the assessment process but they fundamentally disagreed with diagnosis and prognosis. The assessment was

undertaken some fifteen months after the child had been placed in their short term care.

11. Foster Carer 1 in evidence stated that they requested the Agency to procure a second opinion but none was procured. They did

not put this request in writing to the Agency. The Assessment was undertaken some fifteen months after the child had been placed in

their short term care and did not tally with their day to day experiences as the child’s primary carers. They were adamant that the

child did not have any dysmporphic features and that any problems presenting related to her early experience of harm which could be

remediated in time within a loving secure placement. They fundamentally disagreed with the diagnosis of an attachment disorder.

12. The long term placement of the child remained undecided between February and July 2014 as the three placement options were

explored by the Agency. In July 2014 Foster Carers 1 and 2 proposed that they should be considered as a long term placement for the

child as they could meet the child’s needs but they again disputed the diagnosis of the Psychiatrist on the basis of their own

observations of the child’s development and on the basis of information gleaned from the internet. Moreover, Foster Carer 2 is a

psychotherapist. However, notwithstanding their opinion they agreed to follow the recommendations of the Psychiatrist.

13. The Agency wrote to Foster Carers 1 and 2 in July 2014 setting out their expectations of them to implement the follow-up

recommendations of the Psychiatrist. This required them to engage with hospital appointments, attachment therapy and /or family

therapy, speech and language therapy and early intervention appointments.

14. Foster Carers 1 and 2 agreed that Foster Carer 1 would undertake any remediation work requested by the Agency. Foster Carer 2,

who strongly disagreed with the attachment disorder diagnosis, agreed to remain respectful to the diagnosis but, he would not

participate in any remediation therapy. It remained the view of Foster Carer 1 and 2 that the child was progressing in a

developmentally appropriate way and that the diagnosis was mistaken.

15. In August 2014 they bought the child to the Assessment and Intervention Team as recommended and requested by the Agency.

This assessment was to address language and motor delays. The Assessment Team concluded that the child did not need team

intervention at that time and that her speech and language delay needs were best met within the community Speech and Language

Team. The Foster Carers were given a home programme to address any mild motor delay.

16. The Psychiatrist required the child to be re-referred to the Early Intervention Team for further follow up assessment. Foster

Carers 1 and 2 co-operated with this request and the child was discharged for the second time by the team.

17. Foster Carer 2 held the strong opinion that attachment therapy was potentially dangerous for the child and did not believe that

the therapy held any benefit for the child however, they were both agreeable to co-operate.

18. Both Foster Carers 1 and 2 facilitated sibling access. These arrangements did not include overnight access visits and to the best

of their recollection there were only seven access visits in all with the Kinship Foster Carer and the siblings in her care even though

this placement was proposed as the child’s long term placement originally. They also believed that sibling access was of little practical

benefit to the child having regard to her age and stage of development and that of the siblings. They were also concerned about the

practicalities given the logistics involved.

19. The Agency facilitated Foster Carers 1 and 2 with a follow up appointment with the Psychiatrist so that he could explain to them

his diagnosis and prognosis and his rationale for the necessary treatment recommendations. It is fair to say that the Foster Carers

remained unconvinced.

20. The Foster Carers attended the Statutory Child in Care Review in October 2014 and Foster Carer 1 evidenced that they formed

the impression that the Agency was willing to consider them as long-term Foster Carers of the child, but that the Guardian Ad Litem

had reservations in view of their disagreement with the diagnosis of the Psychiatrist.

21. In November 2014 the Agency concluded that placement with the Foster Carers could not be considered a suitable long- term

placement for the child. The Foster Carers were informed of this conclusion in November and with some regret agreed that they would

support the transition of the child to a new long term placement. The Foster Carers expressed the view that the transition should be

on a phased basis due to the length of time she had been with them

22. The possibility of placement with the Kinship Foster Carer was explored again and was ultimately agreed to meet the needs of the

child as a long term placement. It was considered that this placement had the benefit of being a relative foster placement with other

nearby family and community supports. Foster Carers 1 and 2 were informed in March 2015 of this development and the Agency

proposal which had been lodged with the Fostering Committee. What was proposed was that that the child would be moved to this

long term relative foster placement and that a Transition Plan would be drawn up if the placement was approved by the Committee.

23. The Placement was approved in late March 2015 and the Agency commissioned a Report from Dr. HG an expert in attachment as

to how best the transition could be managed in the best interests of the child. Foster Carer 1 was critical that the Guardian Ad Litem

had not visited the home of the proposed Kinship Carer in advance of this decision.

24. It is fair to say that there was some element of ‘wobble’ by Foster Care 1 & 2 in terms of acceptance of the Agency decision to

the move of the child from their care to the new long- term approved relative foster carers.

FINDINGS OF FACT ON EVIDENCE ADDUCED

25. I do not intend to rehearse the evidence of the witnesses in this case.

26. I am satisfied on the evidence that Foster Carers 1 and 2 were in agreement with the plan to transition the care of the child from

their care to that of the long term approved relative foster carer in principle in April 2015 although in late April they expressed

misgivings about the decision to the Public Health Nurse, NH. I am also satisfied on the evidence that in May 2015 they indicated that

the long term approved relative foster placement offered a benefit to the child in being placed with siblings.

27. I am satisfied also, however, that the prospective loss of the child to a long term placement was heartbreaking and traumatic for

them and that they thought that the transition of care would proceed in a phased way adopting a child-centred perspective and that

the transition arrangements would be at the child’s pace.

28. I am satisfied on the evidence that the Foster Carers fully co-operated with the recommendations of Dr. HG and provided detailed

information to the Agency about the day to day likes and dislikes and routine of the child. The Transition Plan also required their co-

operation in access arrangements.

29. I accept the evidence of Foster Carer 1 and 2 that they proposed that the Relative Foster Carer would stay with them in their

holiday residence so that the child could become familiar with the new carer as they gently relinquished their primary care to be

replaced by the gradual assumption of primary care by the Relative Foster Carer. This option was not accepted.

30. I accept the evidence of Dr. G’s and the Allocated Social Worker and Guardian Ad Litem that expert advise was sought and given

regarding the details of the Transition Plan regarding the timing of the transfer of care and how it should be managed and I accept

the evidence of the Allocated Social Worker is that this advice informed the strategy employed by the Agency with the support of the

Guardian Ad Litem in the transition of the child to the long- term relative foster placement.

31. The evidence of both Dr. HF and the Guardian Ad Litem was that a long drawn out transition was not in the child’s best interest

once the Agency agreed that the child should move to a long-term relative foster placement and I accept this evidence. I also

accept however that the 2 week transition period was an extremely difficult one for Foster Carer 1 and 2 and the Relative Foster

Carer.

32. I am satisfied in the evidence that Foster Carers 1 and 2 and their family welcomed the Relative Foster Carer to their home and

facilitated access in the course of the brief transition. I am also satisfied, however, that they became concerned that the approved

long term Relative Foster Carer was insufficiently attuned to the child’s needs and therefore they apprehended that the new

placement would not be a good experience for her. I am further satisfied that Foster Carers conveyed their disagreement with the

transition process to the Agency Customer Service of the Agency in late May 2015 and received a comprehensive reply from the

Agency three days later regarding the complaint procedure relevant to the portion of the complaint that the service has competence

to deal with. I am satisfied that the Allocated Social Worker met with the Foster Carers in late May and they acknowledged that the

move was in the child’s best interests but they were not happy with the details of the transition plan. I accept that the allocated

social worker fully outlined the need to support the child in understanding the transition.

33. I accept that every effort was made by the Foster Carers to be hospitable and welcoming to the Relative Foster Carer that it was

an extremely difficult experience for them in light of their misgivings. This was a very tense time for all concerned and I am satisfied

that the discomfort of Foster Carers 1 and 2 regarding the care transition plan created tension described by Dr. HG and the Guardian

Ad Litem as ‘triadic tension’. I am reinforced in this view as I accept that they also consulted their General Practitioner and requested

him to write to the Area Manager and Allocated Social Worker at the end of May 2015 objecting to the child’s move from their care

the following day and informing the Agency that he had referred the child to the Child and Adolescent Mental Health clinic asking them

for “a full evaluation and assessment for their recommendations for proper safeguards and a detailed report”. The correspondence

concluded that until a slower more structured plan for the move was drawn up it was the Doctors view that the current plan should

be abandoned and stopped immediately in the interests of his patient’s welfare.

34. I accept the rationale of the Agency to expedite the transition plan to minimise the impact of the transition on the child in the

best interests of the child. The child’s transitioned to her long term relative foster placement occurred at the end of May 2015.

35. I am not satisfied on the evidence that Foster Carer 1 and 2 were unfamiliar with the Fostering Regulations as they were

experienced foster carers for the Agency and had, according to the evidence of Foster Carer 1 other foster children in their short

term care. They had been trained and had prior experience of children leaving their care. They also have another foster child who has

been with them for some five years.

36. I accept the evidence of Foster Carer 1 that it was a highly emotional and traumatic experience for her and her family and that

the child was upset. However I accept the evidence of the Allocated Social Worker that the child’s upset was relatively short-lived

and that she had calmed down very considerably in the car journey to meet her long-term Foster Carer.

37. I am also satisfied that the developmental advances made by the child since her move to her long- term relative foster placement

are not necessarily extraordinary but rather reflect the natural healthy competition among a sibling group close in age. It is noted that

the child is now fully toilet trained, her speech and language delay has ameliorated to the point where she is making sentences, she is

eating using a fork and sleeping well. The Guardian Ad Litem is very concerned about her drawings which appear to exhibit a

sexualised element however, no inference is drawn in this context relevant to the applications before the Court in this application.

38. It is unfortunate that Foster Care 1 and 2 were unable to accept the suggestion of the Allocated Social Worker and Guardian Ad

Litem that they send a card or memento to the child to let her know that they were thinking about her. It is clear from the evidence

of Foster Carer 1 that they saw no purpose in this given her age and stage of development and could not accept an alternative

perspective in this context.

RELIEF SOUGHT BY FOSTER CARERS 1 AND 2.

39. The Court made the Care Order in this case in April 2014 for a period of three years expiring in April, 2017. Pursuant to section 18

(2) of the 1991 Act the Court committed the Care of the child to the care of the agency for the period of the Care Order. Pursuant to

section 18(3) the Agency must now do what is reasonable in all the circumstances of the case for the purpose of safeguarding or

promoting the child’s health development or welfare for the duration of the Care Order. In particular the Agency has the authority to

decide the type of care to be provided for the child under section 36 of the 1991 Act. I am satisfied that they have done so and I am

not satisfied that the Applicants have established any necessity for the Court to vary or discharge the Care Order made and

accordingly I refuse this application pursuant to section 22 of the Act.

40. I am not persuaded that it is in the interests of the welfare of the child or that it is proper in the circumstances to direct the

procurement of a Report reviewing the diagnosis of the Consultant Child Psychiatrist and accordingly I refuse the Applicant’s

application pursuant to section 27 of the 1991 Act.

41. Having considered the evidence of Foster Carer 1 and the evidence of the allocated social worker, Dr. HG and the Guardian Ad

Litem. I am satisfied that the Foster Carers have a bona fide interest in the child and were the primary carers for a significant period.

I am also satisfied that they love the child and are concerned about her. However, I am not satisfied that they have fully engaged

with the Agency to make arrangements for reasonable access to the child and have not acknowledged the need for the child to settle

in her relative foster placement with her siblings. I am also satisfied that they have not acknowledged the impact of triadic tension in

any access arrangements on the welfare of the child. I hope that they will reconsider the possibility of indirect access to begin with

as a prelude to direct access. At this time however I believe that it would be premature to make an Order for access under section

37. I am satisfied that the Agency will meaningfully engage with the Foster Carers to agree a child centred access arrangement with

appropriate safeguards and with due regard to the welfare of the Child. I give liberty to the Applicants to apply further to the Court

should access not be agreed.

42. Pursuant to section 47 of the 1991 Act the Court is asked to make Directions affecting the welfare of the child and in particular

the directions sought are;

a) Directing the return of the child to the care of the Applicants pending further order of the Court.

b) An Order directing a proper assessment of what might be in the child’s best interest by undertaken by an independent

third party unconnected to the case.

c) If necessary an Order varying the terms of the Care Order currently in place for the child.

d) Such further orders as the Court may deem necessary.

43. Having carefully considered the evidence I am satisfied that there is no merit in directing the return of the child to the care of the

Applicants. It is clear that the Applicants reject the diagnosis of the Child Psychiatrist and in particular reject the notion that the

child exhibits an attachment disorder. No professional evidence of a contrary diagnosis has been adduced by the Applicants. Foster

Carer 2, who rejects the diagnosis that the child exhibits signs of Foetal Alcohol Syndrome (FAS) or Alcohol-Related

Neurodevelopment Disorder (ARND) and is resistant to a diagnosis of reactive attachment disorder within the ambivalent avoidant and

disorganised attachment paradigm, has not given evidence supporting his rationale for rejecting this diagnosis. I am satisfied on the

evidence of the Allocated Social Worker that the move was very traumatic for the Applicants and I am also satisfied on the evidence

of Dr. HG that the child talks of her placement with the foster parents in terms that suggest she appropriately misses them. I am

satisfied on the evidence of Dr. HG that ‘triadic tension’ has complicated the relationship between the Applicants and the long term

foster carer and that these proceedings coupled with postings made by the Applicants on a public forum have led to an uncomfortable

situation. I am further satisfied on the evidence of the Allocated Social Worker, Dr. HG and the Guardian Ad Litem that there is

nothing to be gained for the child by returning her to the Applicant’s care only to recommence her transition to the long term care of

the Relative Foster Carer. I am satisfied that such action would not be in the best interests of the child. Accordingly I refuse the

other relief’s claimed under section 47 of the 1991 Act

44. Solicitor for Foster Carer 1 & 2 applied for costs which application was opposed by the Child and Family Agency. Solicitor for the

CFA noted that they would not apply for costs against the foster carers who were the moving parties in these proceedings. Having

carefully consider the relevant case law, in particular the decision of Child and Family Agency (formerly Health Service Executive) -v-

O.A. [2015] IESC 52 (23 June 2015) and having considered the oral submissions of the parties I am satisfied that there should be no

order for costs against the Child and Family Agency.

District Court Judge

Rosemary Horgan