Care Order dismissed as threshold not met; court found no avoidable impairment of child's welfare.

[2016] IEDC 07

AN CHUIRT DUICHE THE DISTRICT COURT

CHILD AND FAMILY AGENCY

APPLICANT

-AND-

B.D.

RESPONDENT

Child Care Act 1991 – Section 18

In the matter of a Child A

1. This was an application for a Care Order under section 18 of the Child Care Act 1991, as amended, (hereinafter referred to as ‘the

1991 Act’) in respect of a minor (hereinafter referred to as “the child”). The application was made pursuant to the provisions of

section 18 of the 1991 Act and in the Summary of Application filed by the Child and Family Agency in 2016. The Child and Family

Agency sought an Order under the provisions of section 18 of the 1991 Act for the duration of the child’s minority and in particular

that the Court make a finding that the threshold for the making of the Order had been reached pursuant, in particular, to the

provisions of section 18 (1) (b) and (c) of the 1991 Act. The Child and Family Agency was legally represented by a solicitor.

2. The provisions of section 18 of the 1991 Act relating to threshold for state intervention read as follows;

“18. (1) where, on the application of the Child and Family Agency with respect to a child, the Court is 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 the child requires care or protection which he is unlikely to receive unless the Court makes an order under this

section, the Court may make an order in this Act referred to as a Care Order in respect of the child.”

3. The Court in exercising it’s jurisdiction, pursuant to the provision of section 18 of the 1991 Act, must in the words of O’ Dalaigh CJ

in the 1975 decision of B v B [1975] IR 54 conduct what is “in essence an inquiry… the standard of proof is on the balance of

probabilities … the Court has an overriding duty to the welfare of the child.”

4. At all times the application by the Child and Family Agency was clearly made pursuant to the provisions of section 18 of the 1991

Act which incorporate subsections 1 (a), (b) and (c). The Respondent mother was represented by solicitor and Counsel in contesting

same in full and was on full notice that the application was made by the Child and Family Agency pursuant to the provisions of section

18 of the 1991 Act. The Child and Family Agency presented evidence and witnesses were tendered to full cross examination by the

Counsel for the mother. The mother was at all times clear on inquiry the Court must conduct and the provisions of section 18 of the

1991 Act.

5. The child is currently in the care of the Child and Family Agency and has been the subject of an Interim Care Order pursuant to

section 17 of the 1991 Act. The Interim Care Order was first granted in 2014 which has been extended and been in existence since

that date up to 2016 when this court indicated a decision that a Care Order will be made pursuant to section 18 (1) (c) of the 1991

Act for the duration of the child's minority. This court reserved for written decision and reasons and decision on whether the Order

should be made under any other provision of section 18 and whether in particular subsection (1) (b) should be applied to the facts of

this case.

6. The Respondent is the mother of the child. She was legally represented at the hearing of these proceedings by Counsel, and

instructed by Solicitor. The Court was informed at the commencement of the hearing that the mother was not consenting to the

application pursuant to section 18 of the 1991 Act for a Care Order until the child reaches 18 years of age. The Court was informed

that the Respondent mother is currently an inpatient in a Hospital under the care of a Psychiatrist and has the assistance as a

vulnerable person of an Advocate in these proceedings. The Respondent mother seeks that a Care Order be made for a shorter

duration to enable the Respondent mother to regain to full health and be in a position to resume parenting of the subject child. The

Court was also informed that the Respondent mother was hard of hearing and allowance for this was required during the hearing to

ensure that the Respondent mother was fully hearing all evidence and submissions. The Court was satisfied that the Respondent

mother was at all times competent to and did participate fully in these proceedings.

7. The child was represented and participated in these proceedings by and through a Guardian Ad Litem who was appointed by the

Court pursuant to section 26 of the 1991 Act. The Guardian Ad Litem indicated to the Court her support for a Care Order in respect

of the child and recommended such an Order be made for the full duration until the child’s 18th birthday together with a number of

other recommendations. The Guardian Ad Litem was legally represented by a Solicitor. The Guardian Ad Litem prepared a detailed

report for the Care Order hearing which was sworn into evidence and included in the oral evidence to the Court. At the outset, the

Guardian Ad Litem stated that the child did not want to speak directly to the Judge and that it was not in the interests of the child's

welfare to give evidence to the Court and the Guardian Ad Litem would represent and speak to the wishes and welfare of the child to

the Court. This position was not opposed by any of the parties.

8. The Case was heard over several days. Oral evidence was heard from witnesses, presented by the Child and Family Agency. I do

not propose to detail the evidence of each witness, but to summarise the main points as advanced in evidence and found as facts by

this Court. In addition, the Court heard sworn evidence on behalf of the Respondent mother and from the Guardian Ad Litem.

9. At the outset, a Booklet of reports from the Child and Family Agency were admitted on the basis that all witnesses were available

to be called to give evidence and to be cross examined including;

a. Medical reports from the Respondent mother's current treating Psychiatrist;

b. Social work reports; from historical social workers and current social worker and the team lead social worker who

completed the Parenting Capacity Assessment dated 2016;

c. Report of the mental health nurse who the Respondent mother is currently attending;

d. Report of the Child care leader who had numerous therapeutic sessions with the child. Social work case conference

notes and minutes and copy of the child's Birth Certificate were also included in this Booklet submitted to the Court and

which all parties agreed to be submitted to the Court.

10. The case proceeded for hearing over several days. The proceedings could not be concluded on the evidence and case of the Child

and Family Agency due to the fact that the current social worker stated a professional view that the Parenting Capacity Assessment

he had conducted was incomplete since there had been no feedback, communication and input session with the Respondent mother

before the finalisation of the conclusion. Proceedings were adjourned to facilitate this being done with the Respondent mother

reasonably consenting to the extension of the Interim Care Order to allow this to be completed.

11. The case resumed hearing and concluded with evidence from the Team Leader Social worker who completed the Parenting

Capacity Assessment and compiled a written document relating to same and evidence from the Guardian Ad Litem appointed to and

for the child.

12. A Care Order was made by the Court pursuant to section 18 (1) (c) reserving reasons and written decision in relation to section

18 application and in particular section 18 (1) (b) on which all parties were directed to supply written submissions. It was opened to

the Court by the Guardian Ad Litem's legal representative to make a finding pursuant to section 18 (1) (b) even in circumstances

where all parties agreed and had in evidence averred that any harm to the child by this mother was entirely not wilful and was

without intention. The Court having indicated a view that a finding under section 18 (1) (b) would imply that there was a requirement

of a finding of an element of intention on the part of the Respondent mother before section 18 (1) (b) could apply. Judgement was

reserved to afford legal submissions to be filed and the Court to consider same.

13. Legal submissions were received and filed and considered by the Court. The Court was asked to facilitate the parties by changing

the date for decision which the Court agreed to do.

FINDING OF FACTS

15. After hearing all the evidence, reviewing all the material submitted, listening and considering all submissions made and arising I

make the following findings of fact in this case. The Respondent mother has a long history of mental health difficulties originally

diagnosed as personality disorder with some depression and suicidal ideation. Most recently, under the care of her Psychiatrist, the

diagnosis has been further revised as emotionally unstable personality disorder with Adult A.D.H.D. and agitated depression. In

addition, the Respondent mother has a hearing deficiency.

16. The Respondent mother has a pattern of relapse over a number of years and has had hospital admissions. During these times the

child was cared for by extended family. The family have been known to the Social workers since 2003 and the Social services have

had involvement with the family on and off since that time.

17. The Respondent mother was a single parent with no active and ongoing support from the father of the child. As a result of the

Respondent mother's inherent serious health difficulties the child suffered periods of instability, inconsistency, insecurity and unstable

and not emotionally or physically supportive parenting. When the Respondent mother was ill the child was being parented by the

Respondent mother and the child had a number of periods when the mother was hospitalized when the child was cared for by

extended family members. The child did experience circumstantial neglect and instability and insecurity.

18. The Respondent mother’s treating Psychiatrist gave evidence that with his revised diagnosis and a new medication and treatment

regime he is satisfied that the mother has made progress but he opined that the mother’s health continues to be a work in progress.

He made reference to the history and pattern of relapse that has existed for the mother. The Psychiatrist was surprised with the

mother’s recent relapse.. He stated that he believes that he sees a contrast in the mother’s admission and attendance at service this

time and he is hopeful that there will be no further relapses, but he cannot say that there will be a time when the mother can cope

without relapses. He further stated that it is critical for the mother that the child knows that her mother has done everything she can

to resume care and fight for her child. I accept the professional opinion of the Psychiatrist.

19. It is absolutely important to note that this court finds that the child's experience of circumstantial neglect was due to her

mother's health difficulties that were inherent and personal to the Respondent mother and any neglect sustained. I find as a fact that

the circumstances for this child did constitute circumstantial neglect, was not intentional or wilful on the part of Respondent mother.

20. Furthermore, I found the evidence of the Respondent mother genuine and earnest in her wish for her child to know the deep

regard and affection she holds towards the child and the fact that she cannot emotionally agree to a Care Order. The Respondent

mother wants her child to know that she wants to care for her and fought for her and tried with all her ability to resume her care. The

Respondent mother wants her child to know that she was never abandoned by her mother. The undoubted love and affection this

mother and child have towards each other has been noted by the witnesses in this court. The Respondent mother has also made it

clear that she does not want her child to feel she is in any way to blame for the circumstances that have unfolded. The Respondent

mother is clear that her child is a very good child and has done nothing wrong. It is important when the decision of this court is

communicated to the child that the child is clear on the evidence by her mother to this court. I accept entirely the evidence of The

Respondent mother to the Court as outlined.

21. The child is living with a relative foster carer and is enmeshed in her education. The child is gifted I am advised in evidence by the

Guardian Ad Litem and the Respondent mother of her musical interests and abilities and is performing to a very high standard in her

education. I accept and find as a fact that the child wishes to remain living where she is while the child is a minor and wants to see

her mother at times convenient for the child in light of the child's current commitments to her studies and activities. I understand that

at the child’s current age and stage of life security and permanency are now necessary.

DECISION

22. Having regard to the requirements of section 24 of the 1991 Act, 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 child’s wishes, the Court has noted the views of the

Guardian Ad Litem. The Court has also carefully considering the rights and duties of parents and the child both under the Constitution

or otherwise. Having heard the evidence, read the adopted reports and other documents handed into Court in evidence and the

agreed facts the Court finds that the threshold contained in section 18 (1) (a) and (c) of the 1991 Act has been met. The Court is

not satisfied on the facts of this case that the threshold criteria under section 18 (1) (b) has been met.

23. The Court is satisfied that the child’s health, development and welfare is likely to be avoidably impaired or neglected and requires

care or protection which the child is unlikely to receive unless the Court makes a Care Order under section 18 of the 1991 Act. The

Court is satisfied that the child has sustained circumstantial neglect in the terms of section 18 (1) (a) but that this was not avoidable

in light of the particular health and presentation circumstances of the Respondent mother. The Court has had regard to the

Constitution and the case law and in particular State (Kavanagh) v O Sullivan [1933] IR 618 and in Re M a minor [1994] 2 AC 424 and

Re G (Care Proceedings) [2001] 1 WLR 2100 which have assisted in guiding the Court on the law to be applied to the facts of this

case.

24. The Court has had regard to the interpretation to be placed on section 18 (1) (b) of the 1991 Act as advanced by Paul Ward in

the text Child Care Acts 3rd Edition published 2014 Roundhall page 65, where he states that

“The use of the word avoidably …applies to both the concepts of impaired and neglected in the subsection. The section

is silent on the source of the impairment or neglect. If the source of the impairment or the neglect is an individual then

the use of the term avoidably suggest that the conduct amounting to impairment or neglect is deliberate and

conscious…”

25. The Court in keeping with the literal interpretation of statutes and also the need for parties to proceedings to hear in plain English

the judgements made in relation to their cases also had regard to the Oxford Dictionary online definition of the term “Avoidably " This

is an adverb that translates as something that was able to be avoided or prevented, something preventable, stoppable, avertable or

escapable. I find that the use of this term implies that a choice was possible to avoid or not to avoid and whilst I accept that it may

not be necessary to find actual intention on the part of a parent before section 18 (1) (b) can apply I find that it is necessary to find

that in the particular facts of a case that a parent had the ability to avoid or not to avoid and had an element of choice in that

action. I find on the facts of this case as presented and evidenced to me that the Respondent mother was not in a position to be

able to make that choice and that the provisions of section 18 (1) (b) cannot be correctly applicable in this case on it's facts.

26. The Court notes that the father is not currently involved in the child’s life.

27. It is important to note furthermore the current wishes of the child as a paramount consideration for the Court and that the child is

of an age, level and stage of maturity to be in a position to express wishes and that a parent and the Applicant, Child and Family

Agency, must have regard to and give due consideration to the child’s expressed wishes.

ORDERS

28. The Court has made a Care Order committing the child to the care of the Applicant until the child’s 18th birthday. The Court

believes that it is necessary and proportionate to make the order for the full duration in order to provide the necessary stability,

support, certainty, security and reassurance to the child and to enable the relationship of Respondent mother and child to rebuild and

flourish in a more relaxed fashion and having regard to the wishes and views of the child , who is of an age and level of maturity and

understanding to express same and having regard to the welfare of the child as the paramount consideration. I am further satisfied

that the matter of proportionality is dealt with in the fact that by law the Child and Family Agency have a legal duty to consider

Family reunification and the wishes and welfare of the child at each statutory child in care review and a timeframe for the occurrence

of statutory child in care reviews is set down by law.

29. The Court orders that the Guardian Ad Litem remains appointed until a date to be agreed with the Child and Family Agency so as

to have an opportunity to relay and communicate the order to the child and to keep the Respondent mother and the Child and Family

Agency informed as to how and when this communication has occurred. Costs of the Guardian Ad Litem to be discharged on terms to

be agreed to be taxed in default.

Section 47 Directions

30. The Court makes the following completed and finalised Directions pursuant to section 47 of the 1991 Act;

A. That the case be re-entered before the Court by the Applicant and that the Guardian Ad Litem be reappointed

immediately without further order in the event that;

(i) a Social Worker becomes unallocated to the child for a period of 4 weeks;

(ii) A planned or unplanned change of the current foster placement of the child

(iii)A Fostering Link Worker not being assigned to the foster carers for more than 4 weeks.

(iv) If the Child in Care Review as mandated by law for the child is not carried out within the statutory timetable.

(v)If the foster carers are not visited by the Fostering Link worker at least every 3 months, as provided by law.

B. Where possible the Guardian Ad Litem to be provided with 2 weeks notice of re-entry. If the Guardian Ad Litem in this

case is no longer available then the Child and Family Agency is to bring an application to the Court to have a Guardian Ad

Litem appointed pursuant to section 26 of the 1991 Act.

C. That the case be listed for review by the Court and that the Guardian Ad Litem is to be reappointed 6 weeks in

advance.

D. That an After Care Review for the child be commenced on or before the child’s 16th birthday to assess the child’s after

care service needs. That an Aftercare Plan be prepared and an Aftercare worker be appointed for the child not later than

the child’s 16th birthday. The case shall be re-entered before the Court for review of the After Care Plan. The Guardian

Ad Litem shall be reappointed 4 weeks in advance. If the Guardian Ad Litem in this case is no longer available then the

Child and Family Agency is to bring an application to the Court to have a Guardian Ad Litem appointed pursuant to section

26 of the 1991 Act.

E. That the Applicant provides group/peer therapy opportunity to the child in accordance with the child's wishes.

F. That the Applicant offer family therapy when both the mother and child are ready and wish to participate in same.

G. That the Applicant support and offer Life story work to the child at the child’s pace including opportunity for contact

with father and half siblings as is within their ability to so support and in accordance with the wishes and welfare of the

child.

H. That the Applicant supports the child in accessing appropriate information as regards the Respondent mother’s health

diagnosis and issues.

I. That the Applicant supports the Respondent mother in making access a positive experience for both child and mother.

J. That the Applicant support the provision of all appropriate medical, psychological and therapeutic interventions and

services for the Child tailored to meet the child’s specific needs, if any, as identified by the Child in Care Reviews or

otherwise. The Applicant should have particular regard to any professional advice to assist the child.

K. In the interests of the child that the Applicant provide support, advice and assistance to the foster carers to help

them meet the future in caring for the child including the appointment with immediate effect of a Fostering Link Worker for

the family who shall visit the family on a regular basis.

L. Access to the child shall be pursuant to and within the parameters of section 37 of the 1991 Act having due regard to

the best interests of the child, the wishes of the child and the needs of the child and the Respondent mother and/ or

other person provided for under section 37(1) of the 1991 Act.

M. The Court recommends that Access continue on a regular basis between the child and the parent and that every

effort be made by the Parties to encourage and promote access to assist in, strengthening, promoting and developing the

relationship between the parent and the child. However regard shall be had at all times to the wishes of the child.

N. In the event that the parties are dissatisfied with the arrangements that are put in place by the Child and Family

Agency the parties have liberty to apply to the Court for an order under section 37 of the 1991 Act. The frequency and

supports that may be necessary to ensure that the access is meaningful shall be determined through dialogue and review

on an ongoing basis by the Child and Family Agency with the parent.

O. The Order of the Court from the previous court date is confirmed with the alteration of the Directions as outlined

above and with the addition of the finding of this court pursuant to section 18 (1) (a) of the 1991 Act.

31. I wish the mother and her child well for the future.

Judge Marie Quirke

District Court Judge