District Court grants interim care orders for two children and access for the eldest while parents seek return.

[2016] IEDC 02

AN CHUIRT DUICHE THE DISTRICT COURT

THE CHILD AND FAMILY AGENCY

APPLICANT

-AND-

I. RESPONDENT MOTHER

-AND-

B. RESPONDENT FATHER

CHILD CARE ACT, 1991- SECTION 18

IN THE MATTER OF THREE CHILDREN, Child A, Child B, Child C.

Introducton

1. The Child and Family Agency made an application under section 18 of the Child Care Act 1991. All parties are legally represented.

The Child and Family Agency were represented by a solicitors firm, the Respondent mother represented by the Legal Aid Board and

instructing Counsel, the Respondent father represented by a solicitor and the Guardian Ad Litem represented by a solicitor.

2. Over a period of fifteen days, the Court heard evidence from nineteen witnesses and the Court met with Child A, the eldest subject

child in these proceedings, in spring 2016. Child A was required to meet with the Judge after the Judge received oral and written

submissions from all parties and the Guardian Ad Litem attended on request of the Child A.

3. The Court was advised at the outset that pursuant to section 23 of the Children’s Act 1997 the hearsay statements purported to

have been made by Child A and the children could be admitted subject to the Respondent parents right to cross examine the

witnesses to whom the child (ren) had spoken and with the obligation on the Court to decide the weight to be attached after hearing

all the evidence and submissions by all the parties.

4. The Court, at the outset, were advised that the CFA are seeking a Care Order pursuant to section 18 (1) (b) and (c) of the Child

Care Act 1991 for the duration of the three children’s minorities. The Guardian Ad Litem is supporting this application. The Respondent

parents are disputing this application and are seeking the immediate return of the children with the return of the eldest child, Child A

in accordance with her wishes and welfare. The Respondent parents indicated their agreement to a Supervision Order being made by

the Court in the event that the children are returned to their care.

5. The subject children are Child A, over ten years of age, Child B and Child C, both of single digit age.

6. Having heard the evidence tendered herein including the following:

a. Ms. L, Social Worker to the family between summer 2011 and spring 2012. Ms. L included in her evidence that a

previous application for an Interim Care Order had been made to the Court in winter 2011 grounded in allegations made by

Child A in school of physical punishment of the child, violence between the parents and Child A being blamed by both

parents. The application was refused on the basis of an undertaking given to the Court by the Respondent parents not to

physically chastise the children, that the parents commit with the Agency to work with the Agency to take the children

to the GP, that Child A attend Barnardos for counselling, that Barnardos provide parenting support to the parents, that

the Respondent father attend a domestic violence program, and that the Respondent mother attend her GP for advice on

her mental health;

b. Dr. T, Consultant paediatrician, gave evidence of his examination of the children and his finding in particular in relation

to Child A in autumn 2014. He found that Child A’s injuries were consistent with her account of an incident of physical

chastisement alleged to have been perpetrated by the Respondent father;

c. Ms. M of Barnardos gave evidence of her involvement with the family. The first referral was by the Public Health Nurse

in spring 2011. The last contact the family had with this service was in autumn 2013. Her evidence was that the

Respondent parents disengaged in the summer of 2013 and throughout her involvement there were ongoing concerns of

domestic violence, physical abuse, mother struggling and children not coping. Her evidence was to the effect that the

service tried to get reengagement, but it did not work;

d. Ms. S gave evidence of her communications with Child A. Her evidence was to the effect that Child A had not

contradicted herself and was consistent over the period of this witness's involvement in being hit by a hand, spatula and

belt;

e. Ms. E, Learning Support teacher, again stated her experience of Child A and her opinion that Child A was telling the

truth;

f. Mr. D, Social Worker, was the Duty Social Worker in September 2014 when the section 12 of the Act was exercised by

the Gardaí. His concerns included physical abuse, emotional abuse and neglect and domestic violence;

g. Ms. P, Attachment Expert, gave evidence of her assessment of Child A in terms of attachment and diagnosed an

Insecure disorganized preoccupied attachment by Child A to both her parents;

h. Ms. K, Springboard, gave evidence of Springboards involvement with the family in providing supports;

i. Ms. W, of Barnardos, gave evidence of her involvement with parenting supports from the end of 2011 up to summer

2013;

j. Ms. K.M., who supervised and facilitated access from autumn 2014 to date, gave evidence of her experience of the

access;

k. Mr. H, Social Worker currently allocated, gave evidence supporting his application for the Care Order until the children

turn 18 years old. He found his opinion on his Parenting Capacity Assessment and professional knowledge and work with

the family. I was struck in particular by Mr. H’s opinion that Child A will not fully heal while in care due to the emotional

harm she has suffered;

l. Ms. J, Psychologist, agreed to carry out a Parenting Capacity Assessment in relation to a possible reunification of the

parents with Child B and Child C. Ms. J’s professional opinion was to the effect that reunification should not occur and

that the children need to remain in care for the duration of their minorities with a review by the Court. Included in her

professional assessment was her view that the Parental Development Interviews conducted with the parents was to

explore how the parents can understand the child's feelings as different from their own, can understand that their feelings

affect the children; understand their role in regard to the children’s feelings; reflect upon their own experiences as a

parent and if there is a failure to appreciate the internal world of the child. Ms. J stated in her conclusions that both

parents deny the internal world of their children and that there are ghosts awaiting banishment in the psychological and

emotional functioning of both parents. She opined that the Respondent father was childish and did not take adult

responsibility and that the Respondent mother had a greater ability to reflect.

The above list of witnesses, together with submissions, concluded the Agency Case.

7. Evidence given to the Court by and on behalf of the Respondent parents included evidence by;

a. Respondent parents;

b. Ms. B, Aunt;

c. Ms. MA, Respondent mother’s sister;

d. Ms. DA, from the Family Migrant Support Service who gave evidence of her work with the parents and her finding that

the parents cooperated fully with this service;

e. Mr. SA., a family friend, who had also worked with the Respondent father;

f. The Guardian Ad Litem also gave detailed evidence to the Court. The Guardian also expressed her opinion to the Court

that a Care Order in respect of all three children for the duration of their minorities was necessary. However, the Guardian

had noted the evidence of both parents in the proceedings and opined that more openness and frankness had been

evidenced in the parent’s evidence to the Court and reunification must always be considered for this family.

8. The Court met with Child A, accompanied by the Guardian Ad Litem in early spring 2016. A note of the meeting, prepared by the

Guardian and circulated to all parties' legal representative’s records the substance of the communication and meeting.

THE LAW

9. The law in this area is clear. The law is contained in constitutional, convention and statutory provision and has had the benefit of

judicial interpretation at the European and Irish High Court and Supreme Court levels. The Court has a duty to act and to secure the

welfare of the children on the basis of the evidence presented to the Court. Each child has to be considered separately and in the

context of their familial situation. The burden of proof is on the Agency.

10. The standard of proof is on the balance of probabilities and the Court has to be satisfied that the Agency has proven on the

balance of probabilities that it is necessary to remove the children/each child and that a Care Order, in this case sought for the

duration of the children’s minorities , is a proportionate and necessary response to secure the welfare of the child/children and that

the child/children require care and protection which they are unlikely to receive unless the Court makes a Care Order. I have received

submissions on the law from the parties which I have considered.

FINDINGS OF THE COURT

11. Having heard all the evidence and submissions and representations in this case and in particular the oral testimony of the

Respondent parents it is my finding of facts that;

a. The relationship of the Respondent parents has been characterized by domestic violence and instability and that the

children have been exposed to the domestic disharmony, violence including oral and physical exchanges between the

parents.

b. Whilst the Respondent parents got married in summer 2013 and have presented to this Court, the Social Workers and

the Guardian are seeking the return of the children to their care, it is noteworthy that in the Respondent mothers

evidence to the Court, she stated that she would live separate and apart from the Respondent father if this meant that

her children would be returned to her care. This is a factor that causes the Court disquiet in that this evidence causes a

question mark over the commitment and clarity of the parent’s actual family situation and thus the actual clarity of the

alternatives being proposed to the Court by the parents in terms of the lives of these three children.

c. Both parents gave evidence to the Court of past relationship problems and of increasing stability and improving

communication in the period since the children have gone in to care. However, I am satisfied that the Respondent father’s

tendency to anger and aggression as a first response to any threat ,real or perceived, to his authority is still a real reality

for this family. The Respondent mother gave evidence that her husband needs more help in dealing with anger and

aggression and the Respondent father’s demeanour in the witness box confirmed to the Court that the Respondent mother

is correct in her view.

d. I conclude that Child A's statements to professionals ranging from school teachers, Dr. T, the Social Workers and

professionals involved with this family are credible and consistent. Child A's statements have been corroborated in part by

both the Respondent parents and by her sister and to a lesser degree , due to his age and stage of development, by the

presentation and demeanour of her brother as evidenced to this Court by the evidence of witnesses.

e. I do not accept the contention by the Respondent parents that Child A had lied. I also do not accept their contention

that corroborative statements by Child B have been influenced by her big sister, Child A. I accept and it is normal that

Child B would look up to her big sister, who it is expected would have an influence in her life and I am satisfied that any

statements by Child B are statements of her own experience and perception and not influenced or caused by her sister.

f. I am satisfied that Child C has demonstrated behaviour that indicates he was exposed to violence between his parents

and excessive physical chastisement of his sister Child A.

g. I am satisfied that the Respondent father is still in denial of his children’s' experience while in his care.

h. I am satisfied that the Respondent mother did not act as a protective factor in the children’s lives when the

Respondent father could not control his impulse to anger and aggression.

i. I am satisfied that both parents have denied the actuality of the experience of their three children.

j. I am satisfied that Child A has been physically chastised to an excessive extent.

k. I am satisfied that Child B has also had physical chastisement albeit to a lesser degree than her sister.

l. I am also satisfied that Child C has been hit at least once with a stick.

m. I am satisfied that neither parent was attuned to the emotional needs of their children and that there has been

emotional abuse of all three children.

n. I am satisfied and accept the evidence of both parents that they were reared with physical chastisement and it is part

of their ingrained experience which at their core they have accepted as having value to their lives.

o. I am satisfied that neither parent has questioned and evaluated the correctness or appropriateness of physical

chastisement of their own children even though extensive time has been afforded to both parents to learn alternative

parenting strategies. I do not believe that either parent deeply took on board professional advice and assistance offered

to them by Social workers, Barnardos and Springboard. I am satisfied that the Respondent parents have engaged in a

formulaic manner with no real engagement.

p. I find as a fact that there has been physical and emotional abuse and wilful neglect of these three children by their

parents. All three have been exposed to domestic violence. Child A has experienced excessive physical chastisement and

both Child B and Child C have also been hit albeit to a lesser degree. Basic needs for food and shelter have been met by

the Respondent parents, but the need to feel secure, safe and not in danger or threatened in their own home has not

been the experience of these three children.

12. I am satisfied and accept the evidence of Ms N that neither of the Respondent parents have dealt with their own issues now to

the detriment of their ability to safely parent their own three children. I am further satisfied that neither parent has demonstrated or

shown an ability to empathize with the three children and to see from the perspective of the children how it must have felt to be

parented by them. I am satisfied that the Respondent mother was neglectful in her parenting of the three children and in particular

Child A.

13. I am satisfied to make Care Orders in relation to the three children and I am satisfied that the threshold for State intervention has

been reached in relation to all three children pursuant to section 18 (1) (b) and (c) of the Act and that they require the care and

protection of a Care Order as necessary to secure their protection and welfare at this time.

14. However, it is now necessary to consider the proportionate response in light of the facts I have found. I am mindful that these

three children are of tender years. The Social Worker has confirmed that it is unlikely Child A will heal while she remains in care. Both

Child B and Child C have expressed a clear wish to return home.

15. The Guardian in her evidence saw a movement by the parents during the proceedings to enable her to opine that there was a

marked improvement in engagement by the parents and the Guardians view that reunification for this family must always be an option.

I am mindful that the best place for children to be reared if it is in accordance with their welfare is in their own home with their own

family.

16. I have come to the view that these children are entitled to expect this Court to give their parents an opportunity to remedy the

situation. I believe that this Court's duty to the children necessitates the Respondent parents being afforded an opportunity to

engage meaningfully with therapeutic supports to gain the empathy and understanding which they must possess to parent their

children safely. Also, the Respondent parents need a period of time to reflect on whether they will parent together or separately.

17. Furthermore, the Respondent father needs to engage in real therapy in a meaningful way to address his anger management

issues. Furthermore both Respondent parents need to prioritize the regaining of the trust of their daughter, Child A, and to reconcile

unconditionally with her in relation to her experience of being parented by them. A proportionate Order therefore that is appropriate

for each child taking into account the individual needs of each child and noting that reconciliation with Child A will be a real indicator

of the progress required in relation to empathy and understanding that would lead to the return of all of the children to the care of

their parents.

18. In relation to Child A I am making a Care Order until summer 2017 before Child commences secondary school with a listing of the

case pursuant to section 18 (2) of the Act that a Guardian Ad Litem be reappointed six weeks in advance without further order on

this date in summer 2017 and I am making Directions under section 47 in relation to Child A that;

a. Access pursuant to section 37 in a manner that enables and supports the reestablishment of trust and a relationship

between Child A and her mother and between Child A and her father in accordance with Child A’s time table,

b. Therapy referral to be made for the Respondent father regarding Anger management and therapy to assist insight and

empathy,

c. Therapy referral to be made for the Respondent mother to support gaining of insight and empathy into child,

d. Therapy referral to be made for Child A to process her experience in a manner that will assist her in re-establishing a

relationship with her parents and will assist her in developing self-worth and self- esteem.

19. In relation to Child B, I am making a Care order to autumn 2017 with a listing of the case pursuant to section 18( 2) of the Act on

that date Guardian ad Litem to be reappointed 6 weeks in advance without further order with Directions under section 47;

a. Access pursuant to section 37 in a manner that ensures and supports the ongoing relationship of child and parents,

b. Therapy referral for father re anger management and insight and empathy,

c. Therapy referral for mother re insight and empathy.

20. In relation to Child C I am making a Care Order until autumn 2017 with a listing of the case pursuant to section 18 (2) of the Act

on that date in the Court. Guardian Ad Litem is to be reappointed 6 weeks in advance without further order with similar Directions as

in the case of Child B.

21. In addition, in relation to all three children the following Directions under section 47;

a. Guardian ad Litem to be reappointed and matter re-entered in Court in the event of any of the following occurring;

i. Any change in placement planned or unplanned

ii. The child/children without an allocated Social worker/ fostering link social worker for a period of 4 weeks

iii. Statutory child in care reviews do not take place within the statutory time table

b. Application to be made by Agency pursuant to section 26 in the event that current Guardian ad Litem not available or

no longer practicing in the event of any necessary re-entry,

c. Agency to take steps to ensure the children are exposed to and have experience of their heritage including Portuguese

language,

d. Agency to enlist the assistance and advice of Family Migrant Support services in communications and engagement with

the Respondent parents,

e. Sibling access to take place as regularly as possible to maintain and nurture the sibling bond and to assist Child A in not

feeling isolated from her siblings since Child B and Child C are placed together and Child A is in a placement on her own.

Marie Quirke

District Court Judge