District Court refuses Interim Care Order as children are thriving and risk of harm is not significant enough to justify separation.

[2015] IEDC 08

AN CHUIRT DUICHE THE DISTRICT COURT

CHILD AND FAMILY AGENCY (CFA)

APPLICANT

-AND-

ES

FIRST NAMED RESPONDENT

AJ

SECOND NAMED RESPONDENT

CHILD CARE ACT 1991 - SECTION 17(1)

IN THE MATTER OF Child “A” and Child “B”

INTRODUCTION

1. This is an application by the Agency for an Interim Care Order in respect of two children who are aged six years and four years

respectively. They will be referred to throughout this decision as Child “A” and Child “B” as nothing must be reported concerning this

case which would serve to identify either of the children or the parents who are the subject of these proceedings.

2. The application by the Agency for an Interim Care Order is motivated by their concern that the emotional welfare of both children

is at risk by reason of impaired insight by the mother into the impact of her mental ill-health condition, on the emotional health

development and the welfare of the children. The mother (the first named Respondent) has a conflictual relationship with some of her

neighbours and the children have been exposed to situations where their mother was either the aggressor or the victim in physical

and or verbal altercations. Her ‘on- off’ relationship with the children’s father (who is the second named Respondent in these

proceedings) is unclear to the Agency. They are concerned that the mother lacks attunement to the children’s age and stage of

development and this exposes them to risk of emotional harm. While it is acknowledged that the mother can meet their basic needs,

the Agency is of the view that she cannot meet their emotional needs. They are concerned that because she has rejected their

assistance and services and is hostile and aggressive towards them, they cannot safely discharge their statutory function.

3. The mother is represented in the proceedings by her solicitor. The father is not represented and has not participated in these

proceedings.

BRIEF HISTORY

4. The mother in this case has given birth to four children and has a diagnosis of paranoid schizophrenia. Her first child is in the full

time care of that child’s father and his partner since 2000. Over a decade later the mother gave birth to a second child. The mother

received no prenatal care during that pregnancy. The circumstances surrounding the home birth in the summer of 2003 were

dramatic. The child was taken into emergency care following the birth due to the physical risk to the baby if left alone with the

mother during a psychotic state. The mother’s illness was assessed as being moderate to severe at the date of the full care order

hearing in 2004. At that time it was determined that the mother lacked insight into the illness. This factor coupled with alcohol abuse

increased the risk of non-compliance with the required treatment plan for schizophrenia and therefore, exacerbated to an

unacceptable level the risks inherent in the care of the baby.

5. The mother’s paranoid schizophrenia has now stabilized. She has two children who are the subject matter of these proceedings.

She is not married to the children’s father and they do not reside together. The father has informal access with the children, which is

facilitated by the mother.

AGENCY INVOLVEMENT 2009-2011

6. A pre-birth conference was convened in 2009 before the birth of Child “A” in light of historical agency concerns regarding the acute

ill-health of the mother when not taking medication and if abusing alcohol. The risk assessed was that deviation from the treatment

plan would lead to rapid deterioration of functioning and aggressive behaviour by the mother posing a threat to those around her. To

address the identified risk a safety plan was put in place. The goal of the safety plan was to scaffold an array of support services

around the mother and to assist her in maintaining her illness while managing and caring for an infant. The Agency was also concerned

to identify any residual or emerging risks to Child “A” in light of their overarching statutory function of child protection. The safety

plan package included Public Health Nurse, Community Mental Health Services, Family Support Workers and Social Work Department

oversight. In addition, extended family support was marshalled to ensure that a family member resided with the mother and another

family member visited daily.

7. This plan worked well for the first year, however, in 2010 the extended family became concerned that the mother had become

unwell again. There were concerns that she may have stopped taking medication and began to drink heavily. This triggered Agency

intervention in the first half of 2010. By reason of the mother’s aggressive reaction to this intervention, An Garda Síochána attended

the home and exercised their power under section 12 of the Child Care Act 1991 (hereinafter referred to as the Act of 1991) taking

the child to a place of safety. An emergency care order was sought and granted for a brief period. The Agency sought an Interim

Care Order for a longer period. Child “A” was returned to the care of the mother that week and the Interim Care Order proceedings

were adjourned.

8. The mother expressed her dissatisfaction with the level of professional involvement in her home as she found it too intrusive. She

also considered that occasional moderate consumption of alcohol was acceptable. Ultimately a reduced level of involvement was

agreed whereby the Agency would make one unannounced home visit by the Allocated Social Worker and one by the Mental Health

Social Worker weekly and that the mother would adhere to the medication prescribed by her psychiatrist. It was also agreed that the

mother would consider enrolling Child “A” in a nursery or Family Resource services weekly and meaningfully engage with the Social

Work Department. On this basis the Interim Care Order proceedings were discontinued.

9. The birth of Child “B” increased the level of Agency involvement with the family again. However, two months after the birth the

mother was arrested under section 12 of the Mental Health Act 2001. A member of the public reported that a child was wandering in a

state of undress apparently unsupervised. When An Garda Síochána arrived to investigate this report they observed that the mother

was unsteady on her feet and appeared to be intoxicated and suffering from a mental health illness. The children were left in the care

of a family member. The attending psychiatrist who examined her recommended her return home in the children’s best interest. An

Garda Síochána activated a further child protection notification to the Agency. This resulted in the creation of another child

protection plan. The revised plan entailed regular home visits by the Social Work Department, weekly Family Support Service visits

and fortnightly Community Mental Health Nurse visits. Additionally, Child “A” was to attend school and the Family Support Service was

to visit the home on a daily basis. Although maternal family members and the children’s father attended the child protection

conference to discuss these supports the mother did not attend.

AGENCY INVOLVEMENT 2012-2014

10. The Agency continued to safeguard Child “A” and “B” in the care of their mother and on the completion of a risk assessment the

case was closed at the end of 2011, but family support remained in place as a support and protective measure. The case was re-

opened in 2012 as a referral was received from a Housing Welfare Officer, which engaged child protection concerns for the Agency.

The referral related to a neighbour dispute, which may have been witnessed by the children. A professionals meeting was held which

determined that the Agency support would continue to serve as well as appropriate child protection measures to address the risk

assessed.

11. The mother became reluctant to accept some of the support and advice of the Agency and complained about the level of their

intervention as intrusive. A child protection notification was received from An Garda Síochána in July of 2013 following the mother’s

arrest for public order offences. The children’s father who had briefly renewed his relationship with the mother also contacted the

Agency raising concerns. By December of 2013 Agency concerns escalated further as the mother’s relationship with the Allocated

Social Worker at that time became very strained. The children’s father commenced private law proceedings seeking a Guardianship

role in respect of his children. He also sought an order for custody and the Court ordered access to the children.

12. In the summer of 2014 the mother was the victim of a serious assault by a neighbour, which may have been witnessed by Child

“A”. The mother was subsequently admitted to the hospital following another altercation with a neighbour and An Garda Síochána

intervention. Her relationship with the Agency remained very strained and her relationship with the children’s father was also in a

state of flux as it appeared that they intended to reside together as a couple in April-May 2014. Family support work and social work

visitation was declined by each parent however, the mother’s general engagement with the Community Mental Health Nurse and clinic

attendance continued to be good and it appeared that she was fully compliant with her treatment plan.

13. The Agency sought and obtained a supervision order under section 19 of the Act of 1991 in July 2014 on the basis that the

children’s health development and welfare was likely to be avoidably impaired or neglected and that it was desirable that the children

be visited periodically by or on behalf of the Agency for a three month period. This order authorized the Agency to visit each of the

children to satisfy itself as to their welfare and to give the parents any necessary advice. This order expired in October 2014.

2015 INTERIM CARE APPLICATION

14. The nature and extent of the risk to the emotional health of the children in the assessment of the Agency is set out at paragraph

two above. However, the nature of the risk to the children’s health or welfare, which requires them to be removed from the care of

their mother at this time, is less clear.

15. The relationship between the mother and the Agency has always been difficult, but this relationship became impacted again in or

around April 2015. While the mother and the current Allocated Social Worker may have gotten off on the wrong foot, according to the

mother, a purposeful engagement emerged during the period of the supervision order. The mother became hostile to social work

intervention in April of this year when the Agency insisted that Child “A” should engage in non directive art therapy to explore and re-

mediate any emotional harm he may have suffered arising from the mother’s failure to isolate him from hostilities with neighbours,

Social Workers and Family Support Workers. They also sought her agreement to open her home to the OARS service. The mother

declined both services and viewed the array of interventions designed to support her in her parenting role as over intrusive and non-

supportive. She considered the Family Support Service to be unnecessary as her children were at school when the family support

worker called. She does not see the need for art therapy for Child “A” because in her opinion he is a happy, outgoing child. She does

not want to have another domiciliary service such as OARS to assist her as she engages well with her Mental Heath Worker and no

issues arise with regard to her home routine or the presentation and basic care of her two children. She believes that the level of

Agency oversight serves to undermine and disrespect her in her role as a mother.

16. I have heard the evidence of:

a) Dr. EB, Psychiatrist who is the mother’s psychiatrist for over eight years;

b) BM, Mental Health Clinic Nurse who has been involved in the mother’s case since September 2003;

c) SB, Child Care Worker who visited the mother’s dwelling on one occasion to mind the children while the Allocated Social

Worker spoke to the mother;

d) LC, Family Support Worker;

e) AS, Allocated Social Worker from March 2014 to date;

f) The Respondent (mother).

17. I do not intend to rehearse the evidence in detail safe to say that Dr. EB is of the view that the mother’s schizophrenia has now

stabilized and he has seen a great improvement in her health and her engagement over the last five years. The mother is taking

prescribed medication regularly. She has had two pregnancies and has navigated two post partum stressors while parenting alone on

a low income. It was his view that she has managed well and has allowed interventions to maintain good mental health. She has only

had one or two short hospital admissions over the last number of years. While she suffers from an ongoing chronic mental health

illness she also has an individual personality and “her own way of being’. He was far more guarded in his diagnosis and prognosis in

2004. It was his professional opinion that the mother has been well for quite a while and he has not seen any evidence of paranoia in

quite a while. When unwell she responds to medication and is compliant with the medication treatment. He accepted that the mother

could be more vulnerable to stress than other people, but she has had no involuntary admissions over the last five years and when in

crisis she appropriately sought help. It was his professional opinion that her illness was under control although the risk of relapse was

always present; on the basis of the illness alone her children were not at risk.

18. Similarly BM, the Mental Health Clinic Nurse indicated that in her view the mother was compliant with her medical treatment plan.

Her role is to visit the mother as frequently as indicated to ensure compliance by her with medication, to encourage attendance at

the out patient clinic, to discuss stressors and making right choices and the risks associated with alcohol usage and its affect on the

medication. In her view stresses for the mother included the number of professional visitors, the neighbourhood culture and difficult

relationships. BM has visited monthly for the last six months as a support. She noted that the mother was particularly stressed in the

Court environs. However, she has noted that her home is tidy, the children are well dressed and cared for and go to school and

crèche regularly. It was her view that the mother had a good rapport with the children although, she also had a sense that sometimes

she attributed a greater level of maturity and understanding to them than was age appropriate. She has no concerns for their

physical well being. However she was concerned that the mother had a tendency to discuss her stressors with professionals in the

presence of the children. In this regard she requires to be deflected when this happens. She expressed the view that in the context

of neighbour disputes that the mother was more “sinned against” and was potentially the subject of malicious complaints triggering

visits by An Garda Síochána to her home. She also accepted that the level of professional intervention was very high. During 2009

professional visits might be as high as two or three visitors per day although, there was a lessening of those supports in recent years.

However, she agreed that the level of intrusion was high and could constitute stress for any mother. It was her view that the mother

was very protective of her children.

19. SB gave evidence of being asked to accompany the Allocated Social Worker in March 2014 so that she would look out for the

children and allow the Allocated Social Worker to speak to the mother out of earshot. Child “A” began gyrating his pelvis in thrusting

movements towards her and panting and she considered this to be sexualized behaviour rather than a demonstration of an exercise he

had learnt in school. She did not mention this to the mother at the time, or speak to the child about it, but informed the Allocated

Social Worker. She also expressed the view that the home was not very clean, there was a generalized smell of alcohol and some

food was strewn on the floor.

20. LC (Family Support Worker since 2010) gave evidence of her support role until April of this year when the mother made it clear to

her that her presence was no longer welcome in her home. She expressed concerns for the emotional health of the children due to

the mother’s behaviour in April when under stress. She gave evidence of being present when the mother was loudly ventilating her

anger with the Social Work Department in front of the children. In her view this was completely out of order and distressing for

children. She was also concerned that the mother had expectations of the children beyond their age and stage of development. She

was concerned that the children were at risk of social isolation due to neighbourhood discord and their lack of involvement in children

clubs. She agreed that the children were well dressed, healthy and that Child “A” attended school regularly and Child “B” attended

crèche and was due to start primary school in 2015. LC also voiced concerns that the children had a risk of possibly being exposed to

alcohol misuse by their mother. She based this on a discussion with the mother who she stated confided with her that she drank

vodka with her brother when the children were in bed and there was also talk of a bottle of wine at Christmas. She agreed that over

the period of her involvement her practical assistance to the mother had reduced and essentially the Family Support Service no longer

assisted the mother with household tasks or help with shopping when the children were at school. Accordingly, she conceded that her

support role has lost much practical relevance apart from chatting with the mother.

21. AS, the Allocated Social Worker, gave evidence of her involvement with the mother since March 2014. She noted that there have

been eleven case conferences and consequently this was a highly complex case which had been escalated to be overseen by the

Area Manager of the Agency. It was her assessment that the mother behaved inappropriately in the presence of her children and that

the mother had no motivation to change despite intensive support by the Agency. In her view the children needed therapeutic

support in light of being exposed to violence which included an assault on the mother and aggression by the mother. She also viewed

them as needing therapeutic support by reason of the ‘on-off’ interpersonal relationship of the parents and inconsistent parenting.

She expressed concerns about reports that the children had been exposed to sexual encounters of the parents. While she did not feel

that Child “A” should attend for a sexual abuse assessment unit arising from the exposure she considered that he would benefit from

art therapy. Here he could work through any anxiety he was experiencing or had experienced in the past arising from his mother’s

mental health, her inappropriate conversations and aggression in his presence. She was particularly concerned that some of the

mother’s statements in the presence of the children were suggestive that Social Workers were involved in the abuse of children,

which imparted a message of social worker danger in the children’s minds. In her view Child “A’s” response when the mother becomes

heightened is dissociative when his mother is behaving aggressively while Child “B” endeavours to deflect the mother’s attention to a

nurturing role. It was also her view that in the period of the supervision order the mother was superficially motivated to engage in

achieving change whereas the children’s father was more religiously motivated in his role as a father in accordance with the tenets of

his religion. AS wished the mother to avail of a social care model of supports. She discussed the intervention of the OARS service with

the family and while the mother initially agreed she later declined to accept this service. Following threats to her personal safety, the

Agency discontinued home visitation but offered three appointments to the mother to attend the Social Work Department offices and

discussed and overcome the impasse that had developed. It was only when this offer was not taken up that the Agency applied for

an Interim Care Order; she noted that the file recorded eleven case conferences held to assess risk between 2009 and 2015.

22. The mother gave evidence that Child “A” was a bright, social and active little boy. He was a good reader who also liked the

outdoors. Child “B” was also a happy and a spirited child. She acknowledged tension in the neighbourhood she moved to in 2010. In

her opinion if children fight in the play area the parents become involved and An Garda Síochána would be called. She gave evidence

of being the victim of an unprovoked attack when collecting her child from a play area. In her view some neighbours make malicious

complaints about her to the Housing Authority and An Garda Síochána targeted her. The mother was also upset when AS (the

currently Allocated Social Worker) introduced herself as her new social worker. AS complained that the children’s school had raised

concerns that the children attended school unkempt and without lunch. However, the school denied ever raising such concerns and

she was of the view that they did not. This sowed the seeds of distrust from the beginning and she complained about AS to her

supervisor, but she felt this ‘got her nowhere’.

23. She was advised by her solicitor to agree to the supervision order in the hope of finding neutral ground. AS agreed to speak to

the Housing Authority on her behalf and said that she would speak to Child “A” to discuss some of her concerns. The mother’s

evidence was that AS discussed the assault with him and that AS then expressed to her that she was satisfied with the outcome of

her discussion with Child “A”. The mother was not in agreement with the suggestion by AS that Child “A” would benefit from art

therapy and said that such intervention was alien to her upbringing and she felt it was unnecessary. She denied that Child “A” was

isolated as he played with some friends in the neighbourhood and also attended a summer camp. She also facilitated trips to a park

with the children’s father. The mother stated that she does not go out socially to pubs; instead she focuses on her parenting role.

She indicated that the Social Workers and Family Support Workers were the parties who raised the prospect of “Court” with her in her

home when they visited her and this caused tension. She also gave evidence that the level of professional visits demanded by the

Agency were oppressive and in her view was solely focused on finding negatives. She felt undermined and not supported by the

Agency and there was a power imbalance in the relationship. She also stated that when she attended at the Social Work Department

she considered that they were the aggressors and dismissed her concerns as irrelevant to their role. She declined to attend the

recent case conference convened as she felt that the Agency were abusing their power and kept going over ‘old ground’. She

indicated that the children’s father loved them and she facilitated access informally, however they did not get on as a couple. She did

not accept that Child “A” was sexualized in any way. SB was a stranger to her and to the children and did not mention any such

behaviour to her at the time. She denied that the children were exposed to any sexual encounters between her and their father. She

stated that the discussion regarding vodka recounted in evidence by LC Family Support Service was taken out of context and was of

the view that alcohol abuse was not an issue for her. She disclosed that she took a drink last year when the children were in bed as

she was under stress but she has curbed this on the advice of the Mental Health Nurse with whom she confided in and feels she can

confide in. It was her evidence that it would be devastating for her children to be removed from their home and her care for a 28-day

period. She cannot understand why the Agency would view this to be in their best interest.

FINDINGS OF FACT

24. The mother’s schizophrenia had now been stabilized. She has taken her medication regularly and as a result she no longer has

dangerous psychotic periods. When she went into crisis, she appropriately sought outside help. Her illness is not cured and the risk of

relapse is always present, but on the basis of the illness alone, the children are not at risk.

25. The mother scarcely needs exposure to stressful situations. The introduction of a new child into the family dynamic in 2011 was a

new stressor, but by itself, did not present a reason to find either Child “A” or Child “B” in need of protection and the level and nature

of supports provided by the Agency were entirely appropriate at that time to avoid any child protection concerns.

26. The mother and the father have a troubled relationship, which is neither committed nor stable, but they appear to have worked

out a consensual access regime for now and the mother facilitates access informally. In this regard they are no different than many

couples. On the basis of relationship discord and difficulties in working out arrangements for parenting separately by itself, the

children are not at risk.

27. The mother has had difficulties with neighbours and the Housing Authority. The evidence adduced indicates that the source of

these difficulties may be nuanced. The Mental Health Visitor regards her as “more sinned against” in this context. The Agency has

also advocated on her behalf in this regard as she finds living in the neighbourhood culture to be difficult.

28. The mother has been arrested for public order offences. However, in isolation this is not a reason to take children into care.

29. The level of Agency visitation coupled with mental health visitation from 2013 -2015 is perceived by the mother as cumulatively

oppressive. No evidence of risk to Child “A” or Child “B” was adduced which established a risk by reason of the mother’s diagnosis of

paranoid schizophrenia in this period. This does not mean that the Agency concerns were not founded in reality; they were.

30. While the mother perceives the visitation of the Mental Health Nurse as helpful, purposeful and beneficial she views the visitation

of the Family Social Service and Social Work Department as oppressive and fault finding. This does not mean that the mother’s

engagement with Social Workers and Family Support Workers was appropriate and measured; it was not.

31. This is not to say that the mother’s concerns are not reasonable, even if not entirely accurate. For example, her concern was

that AS was mistaken when suggesting that the school had concerns regarding the presentation of her children. Although this fact

was not put to AS during cross examination for her response, the statement was not challenged by the solicitor for the Agency and

regardless of whether it is an accurate representation of what happened, it was a valid concern for the mother to raise. There is also

nothing wrong with the mother advocating a change in agency policy or questioning the validity of or type of interventions proposed

by the Agency. She is not obliged to accept all services offered unless they are necessary and demonstrably serve a child protection

need. The intervention of an Interim Care Order also carries a risk of emotional damage for the children through separation from their

mother.

32. The mother’s lack of understanding of how exposure to violence poses a potential risk to the emotional welfare of her children is

another issue. Her engagement in her local community has been troubled even if she was ‘more sinned against’ in this context. Her

engagement with Social Workers and Family Support Workers has been aggressive when dialogue failed to establish a mutually

satisfactory resolution. The mother’s defiant and argumentative attitude is not transitory, but appears to be part of her personality or

as described by her Psychiatrist her ‘own way of being’. However, on the evidence before the Court this falls far short of a conclusion

that these children need to be taken into care for this reason alone.

33. The suggestion of social isolation is not established on the evidence before the Court and I accept the evidence of the mother

that Child “A” has been engaged in a summer camp and it is her intention to send Child “B” to school in September. This shows

initiative and foresight.

Threshold Criteria of S 17 Child Care Act, 1991

34. The threshold criteria set out in the Act of 1991 provides a protection for both adults and children and therefore families from

interference in their lives by the State through the making of care orders and Interim Care Orders. This satisfies both the provisions of

the Irish Constitution and the essential object of Article 8 of the European Convention on Human Rights. There is an essential

difference between the threshold criteria set out in section 17 of the Act of 1991 (Interim Care Order) and section 18 of the Act of

1991 (care order). The threshold for an Interim Care Order is that the Court must be satisfied that an application for a care order has

been made or is about to be made and that there is reasonable cause to believe that any of the circumstances mentioned at

paragraph (a), (b) or (c) of section 18 (1) exists or has existed with respect to the child and that it is necessary for the protection of

the child’s health or welfare that he be placed or maintained in the care of the Agency pending the application for a care order. In the

case of a care order however the Court must be satisfied that:

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.

AND THAT the child requires care or protection which he is unlikely to receive unless the Court makes an order.

35. Section 17 of the Act of 1991 recognizes that before making an Interim Care Order and adjourning proceedings for a care order

under section 18, the Agency must establish that they either have or are about to issue proceedings for a care order and they must

also establish reasonable grounds for believing that the child’s circumstances meet the threshold criteria for a care order as set out in

section 18 (1) of the Act of 1991. To justify interference by the State in private family life section 17 of the Act of 1991 is very

specific in its requirements.

36. Firstly the Court must be satisfied that there are reasonable grounds for believing that circumstances with respect to each child

as set out in section 18 (1) exists or has existed with respect to the child.

34. Secondly the Court must be satisfied that it is necessary for the protection of the child's health or welfare that they be

immediately separated from their parent or parents and placed in the care of the Agency until the application for a care order is

determined.

38. Lastly the Court must be satisfied that removal is a necessary proportionate interference with the child's and other relevant

persons' rights under Article 42A and rights to private and family life as contained in Article 8 ECHR.

39. The Supreme Court in the case of North Western Health Board v W (H) [2001] IESC 90 affirmed that the State may only interfere

with a family unit to protect the rights of an individual member of the family if the threshold criteria of the Act of 1991 have been

met. The test to determine when there should be an intervention by the Court s is established in light of the Constitution, especially

Article 40.3, 41 and Article 42A

40. Article 42A provides that:

1 The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by

its laws protect and vindicate those rights.

2 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to

such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian

of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but

always with due regard for the natural and imprescriptible rights of the child.

2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as

may be prescribed by law in their duty towards the child and where the best interests of the child so require.

3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

4 1° Provision shall be made by law that in the resolution of all proceedings -

i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of

any child from being prejudicially affected, or

ii concerning the adoption, guardianship or custody of, or access to, any child, the best interests of the child shall

be the paramount consideration.

2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of

this section in respect of any child who is capable of forming his or her own views, the views of the child shall be

ascertained and given due weight having regard to the age and maturity of the child.

41. The issue to be determined by the Court is whether the threshold criteria set out in section 17 has been met on the evidence

before the Court in this case and in respect of each of the two children, the subject matter of the these proceedings. It is

acknowledged that this is the only application before the Court. The Agency is not seeking an alternative relief under section 19 of

the Act of 1991. Whereas the Court (of its own motion) may consider such an option in the context of the determination of care

order proceedings under section 18 of the Act of 1991 such disposal is not available to the Court of its own motion under section 17

of the Act of 1991.

42. Having considered the ages and level of maturity of the children I do not believe that it is appropriate or feasible that the Court

canvass their views with regard to this application.

43. I have carefully considered the submissions of the solicitor for the applicant and the solicitor for the respondent before reaching

this determination. The Court has been referred to Article 41, Article 42 and 42A and section 17 of the Act of 1991 and has also been

referred to the following cases:

a) W v HSE [2014] IESC 8 setting out the lower threshold under section 17 of the Act; and

b) The English case of In Re H and Others (Minors) (AP) Respondents [1996] AC 563 and [1996] 2 WLR 8.

44. The solicitor for the Agency indicate that it was decided that a supervision order was not appropriate as an adequate intervention

in this case because the mother has declined to allow the children be seen by the Art Therapist, and has refused social work and

intervention by OARS in her home. The social work intervention had been reduced to once or twice every fortnight for one hour

increasing to one hour per week when deemed necessary by the Agency. The Family Support Worker had called each week for an

hour in the morning and the Mental Health Nurse also visited weekly. An Garda Síochána had been called to the home on five

occasions including once on 26th December. It was their assessment that the mother had not meaningfully engaged and was very

aggressive in her interactions with them. Furthermore, it was their assessment that a supervision order would not enable them to

achieve their assessment goal having regard to the decision in F.H & Ors-v- Judge Staunton & Ors [2013] IEHC 533 which established

that while the Agency is plainly authorized to visit the child and to give advice to the parent of a child who is the subject of a

supervision order this does not extend to a positive obligation on the part of the parents to engage in an OARS assessment or to

undergo a particular form of therapy. Section 19(4) does however expressly empowers the Court to require the parents of the child to

cause the child to attend for medical or psychiatric examination or treatment or assessment at a hospital, clinic or other place

specified by the Court.

45. The solicitor for the mother has referred the Court to the same Constitutional provisions. She also submitted that although section

24 of the Act of 1991 highlights the relevance of the ‘welfare principle’ in child care cases and permits some level hearsay evidence to

be received by a Court in assessing a risk to welfare as noted in the case of Eastern Health Board –v-MK&MK [1999] 2 I.R. It was she

submitted, equally important to bear in mind the dicta of Barrington J in the case of WO'R v EH [1996] 2 IR 248 which highlighted that

adjacent to the welfare principle as the first and primary consideration, there are other considerations to be taken into account by

the Court also. Furthermore all factors comprised in the concept of welfare must be fully considered and a dominant position must not

be given to any one of these categories.

46. The solicitor for the mother submitted that the Agency had not established that there was a real and substantial risk of significant

harm to the children which warranted taking the draconian intervention of separating them from their mother. She submitted that the

Agency must establish a real possibility of harm which is not the same as a mere suspicion or lingering doubt but a “likely risk”. She

also submitted that even if the Court found that such a risk existed that the proportionality of the intervention to address the risk

must also be assessed. She submitted that there was no physical neglect in this case and no clarity around the evidence adduced by

the Agency to suggest that the emotional needs of the children required any particular professional intervention. It was her

submission that the intrusion by various professional visitors into the family on a weekly basis was overwhelming and that essentially

the Agency was challenging her right to say no to some of these interventions. She referred the Court also to the case of Olsson v

Sweden 10465/83 [1988] ECHR 2 and emphasized the obligation of the Court to balance the competing rights and not to overstep the

rights of the mother.

DECISION

47. I am not satisfied on the evidence adduced that I have reasonable cause to believe that the Agency has made out circumstances

under section 18(1) (a) or (b) exists or has existed with regard to the children which necessitates the Orders they seek at this time.

The children are, it would seem, bright and happy. They attend school and crèche regularly, have met all of their development

milestones and been seen very regularly by both Health Care professionals and Family Support Workers and Social Workers. The

evidence adduced supports the view that the mother’s mental health is currently not a concern impacting on their parenting and the

mother has fully engaged in maintaining her mental health through active co-operation with her treating Psychiatrist and mental

health team. I am however satisfied on the balance of probabilities that the evidence adduced gives reasonable cause to believe that

the children’s health, development or welfare is likely to be avoidably impaired or neglected through unintentional exposure to conflict

both within and outside of the home. In this context I note the evidence of the Allocated Social Worker and Family Support Worker

and Mental Health visitor who have each witnessed instances when the mother became heightened in the presence of the children or

engaged in adult discussions their presence. The evidence adduced does not establish that the mother suffers from a diagnosable

personality disorder and her Psychiatrist merely noted that she has “her own way of being”. I have received no evidence of physical

harm; on the contrary, the evidence was that the children are thriving. I have received no cogent evidence that the apprehended risk

of future harm in this context is significant or indeed of a greater or lesser order than the harm which the children would experience

through abrupt separation from their primary care giver on an interim basis. Accordingly I am not satisfied that the children require

care or protection which they are unlikely to receive unless the Court makes an Interim Care Order to protect their health and welfare

by separating them from their primary care giver who has otherwise met all of their basic needs and nurturing needs. Accordingly, I

refuse the Agency application for an Interim Care Order and adjourn the application for a care order for further determination by the

Court.

Rosemary Horgan

District Court Judge