District Court allows mother's costs for child care proceedings as they were necessary and proper for the child's welfare.

[2016] IEDC 09

AN CHUIRT DUICHE THE DISTRICT COURT

E

APPLICANT

-AND-

THE CHILD AND FAMILY AGENCY

RESPONDENT

IN THE MATTER OF SECTIONS 47 AND 26 OF THE CHILD CARE ACT 1991

In THE MATTER OF Child A, A MINOR

1. The Applicant herein seeks her costs in the context of District Court Proceedings instituted by her under the Child Care Act, 1991,

as amended.

Background to the Applications under the Child Care Act 1991, as amended.

2. Child A is in the care of the Child and Family Agency since 2014. Child A is currently placed in special secure care facility since

2015.

3. Child A had previously been placed in a residential care facility. Child A was placed in a foster placement which unfortunately broke

down, resulting in her leaving due to her inability to abide by conditions and curfew rules within the placement. Child A briefly spent

time in her father’s care and continued to engage in harmful behaviours including suicidal ideation and walking out in front of a car.

4. Child A was placed in a private foster care placement. Thereafter, Child A moved to another placement, a homeless girl centre, due

to her inability to settle. Child A moved to her current placement in 2014.

5. Child A’s care plan outlines a history of Child Sexual Abuse allegations, ongoing drug taking behaviour, as well as sexual activity,

self-harm and indications of serious mental ill-health. Child A has presented to a hospital, having taken an overdose of alcohol and

drugs, and has had suicidal ideation. In respect of the latter, she has walked out in front of traffic. Child A has indicated that she is

sexually active and plans to get pregnant. Her care plan records that a medical assessment had not, at that point, taken place.

6. Child A has been missing in care on a regular basis. In 2014, Child A had to go to hospital because she said that she had consumed

something which might be a danger to her. She also made repeated threats to kill herself that night. Over the course of a one-week

period, Child A was missing multiple times from her placement. Child A informed her mother that during the times she was missing from

care she stayed in squats with others drinking. Child A also informed her mother that her boyfriend, at that time, carried a knife. She

did not inform the staff at the residential care facility where she was, when missing, and returned with bruising to her face. Child A

reported to the residential care facility staff that she had been sexually abused by a group of men. Her care plan noted that “Child A

reported being sexually assaulted the previous evening, having consumed alcohol with adult males and accompanying them to a

house.” Subsequent documentation, namely the minutes of a Missing in Care Strategy Meeting held in 2015, confirms further

allegations of Child Sexual Abuse perpetrated against Child A during her time in the Respondent’s care, serious mental ill-health, and

continued “missing in care” statuses with no indication of Child A’s whereabouts or with whom she spent such time.

7. In 2015, the following significant events, among others, occurred:

• Child A went missing and made allegations against a man whom she said had kept her against her will the previous night

and had sexually assaulted her;

• Child A was reported missing and said that she was in her boyfriend’s house overnight, but refused to give details. She

was again reported missing two days later and arrived back to her unit at 5am saying that she was suicidal, was hearing

voices, and wanted to go to hospital. She saw a Consultant in a hospital who queried her language difficulties;

•Three days after the professional Strategy Meeting, Child A presented at a hospital, having been discovered in a

troubling state on a bus, and left without being seen to and did not return to her unit until the following day. She was

picked up the following day, but left the unit and stayed out overnight again;

•Child A rang her mother to say that she was in her room, had taken tablets and had penned a suicide note. Child A was

admitted to the psychiatric ward and was later discharged.

8. Child A continued to go missing in care, putting herself at obvious and serious risk. Child A built up drug debts, one of which had to

be discharged by the Applicant.

9. The Applicant’s solicitors, on many occasions, wrote to the Respondents by letter and email expressing serious concerns for Child

A’s safety and wellbeing due to her risk-taking behaviours and sought access to information and documentation pertaining to the care

arrangements for Child A.

10. A number of documents were forwarded to the Applicant’s solicitor, all of which confirmed her serious concerns in respect of her

daughter’s safety and wellbeing. The documentation did not include a Risk Assessment.

11. The Applicant’s solicitor wrote to the solicitors for the Respondent re-iterating her long standing concerns, compounded by more

recent events, and calling on them to set out their reasons for not referring Child A to secure care having regard to their own

guidelines set out in their document ‘Special Care Services Information Booklet; Admission Criteria for a Special Care Intervention –

Referral Guidance for Social Workers’.

12. The solicitors for the Respondent confirmed that the letter had been forwarded to their client. The Applicant’s solicitors wrote

again to the Respondent outlining the ongoing and serious concerns for Child A’s safety and calling on the Respondent to reply

substantively to the earlier letter. The Respondent confirmed that it was finalising a response to the letter. Several weeks later, the

Respondent confirmed that, given an escalation in Child A’s behaviours, it was now the position of the social work department that an

application for secure care should, at that point, be made.

District Court Proceedings

13. Proceedings were instituted, in the District Court, pursuant to section 47 and section 26 of the Child Care Act 1991, seeking

certain documentation, including Risk Assessments, pertaining to Child A’s circumstances and her care, and the appointment of a

Guardian Ad Litem for Child A. On the day that the matter came before the District Court for hearing, the Respondent produced to the

Applicant’s solicitors and the District Court a number of documents pertaining to Child A’s care including:

• An updated care plan;

• A Risk Assessment of self harm suicidal ideations;

• A Risk Assessment of drugs misuse;

• A Risk Assessment missing child in care;

• Individual Crisis Management Plan;

• Safety Plan.

14. These documents all instanced and confirmed the Applicant’s serious and ongoing concerns in respect of the risks to Child A’s life,

bodily and mental integrity, welfare and safety. The Respondents opposed the appointment of a Guardian Ad Litem and did not accept

that an application for secure care should be made. The District Court, on that date, directed that an updated and full report be

produced to the Court along with a therapeutic plan to include input from SASSY and CAMHS. An approach was also to be made to a

psychologist, in respect of attachment work that could be explored, and a strategy meeting was to be organised and a safety plan

put in place.

15. Child A continued to go missing in care and so may have suffered potentially irreversible harm and most certainly is, at minimum,

placing herself at grave risk.

16. The Respondent accepted that an application for secure care for Child A should be made. That application was presented to and

approved by the Resource Panel (Inspection of Children’s Residential Care) on that date. The decision of the Children’s Resource

Panel, clearly sets out Child A’s concerning behaviours including “self-harm, suicide ideations, drug taking and absconsions from the

residential care facility…. In addition, Child A has been the alleged victim of a number of sexual assaults”. The decision went on to

record that Child A had recently been diagnosed by CAMHS with ADHD and had failed to attend a follow-up appointment and was not

taking any medication for the condition. The decision further recorded that “the Social Work Department, along with other

professionals, are of the view that Child A requires long term therapeutic intervention to assist her in resolving her issues. The Social

Work Department are also increasingly concerned regarding Child A’s safety that there is no improvement in her level of absconsion

and her risk taking behaviour has continued. Child A continues to abscond regularly from the unit without informing staff of where

she is and who she is with”, and that “it is further concerning that Child A has not engaged consistently with the supports offered to

her. In light of these concerns, the Social Work Department are of the view that Child A’s safety is a priority and now feel that

secure care is needed in order to stablise her risk taking behaviour and to support her in engaging therapeutic work which she so

badly needs but will not engage with currently.” The decision of the Children’s Resource Panel was recorded as supporting a referral

to secure care and, as a parallel plan, recommended that a once-off consultation with ACTS be sought.

17. As recorded in Report A prepared by the Respondents for the District Court proceedings in 2015: “the Resource Panel noted that a

number of young people are wait-listed for secure care ahead of Child A and advised that a one-off consultation with ACTS be

pursued as part of care planning for Child A while she remains in her current placement”. The report also noted that “the residential

care facility continue to review their risk management plans to address the presenting risks posed by Child A, namely associated

around drug use, being missing from care and also around Child A’s self harm behaviour and suicidal ideation”. Report A also

confirmed that both the Residential Manager of the residential care facility and the Social Worker “have sought a psychologist to give

input to the staff team caring for Child A given the complex needs of Child A”. A subsequent report, Report B, confirmed that a

referral for special care was submitted to the special care committee and, that this referral was accepted and that the Committee

advised that there were currently no vacancies and that the Social Work Department would be providing an update to the committee

on a weekly basis which would be reviewed by them. Report B also confirmed that it had not been possible to access a psychologist

to provide support to the residential care facility in their care of Child A due to “a deficit in the area of psychological support to staff

in residential care staff.”

18. Report A recorded a number of highly concerning incidents concerning Child A including:

• Child A reporting overdosing with Nurofen and Stemital tablets;

• Further abconsions and Child A being under the influence of alcohol and having been brought to A&E;

• Child A reporting that she felt like killing herself;

• A Doctor attending at the residential care facility due to Child A refusing to stay in hospital for medical assessment, and

the doctor recommending further assessment at hospital and Child A refusing to attend;

• Attendance at hospital following another absconscion from care, being placed on a drip and refusing to continue her

treatment and leaving the hospital;

• Child A, following another absconding, requesting to attend at A&E after disclosing that she had taken cocaine the

previous night and “bluey” tablets that morning. Child A also sought the morning after pill disclosing that she had

unprotected sex the previous evening. She was reluctant to wait to be seen by a doctor;

• Child A had been diagnosed with and treated for a sexually transmitted infection the previous month.

19. Report B recorded the following:

• Child A had continued to engage in drug use;

• Child A, having been missing from care on the previous night, was collected from staff and indicated that she had taken

‘MDNA ecstasy’ and stated that she had been ‘out of it for the night’. Child A refused medical attention;

• Child A refused to attend her appointment at a maternity hospital;

• Child A missed her appointment with SASSY due to her having absconded the previous night. The report noted that

“Child A’s inconsistent engagement with SASSY highlights how Child A continues to place herself at risk by not engaging

with the services which she badly needs”;

• Child A, having recently been diagnosed with ADHD, reluctantly attended an appointment with her doctor, but pledged

not to return as she did not like him. She has not, as yet, begun medication for ADHD.

20. The Guardian Ad Litem was appointed to Child A in 2015 and provided two reports to the District Court; Report X and Report Y.

According to Report X, between the period of 8 days, Child A had stayed in her placement one night. The report continued that “she

returned in the early hours of the morning. Child A reported that on one of the nights she slept rough. Her whereabouts on the other

occasions is unknown”. The report also stated that “when the Guardian met with Child A she self reported alcohol use, drug use and

suicidal thoughts. The history of risk is well documented in reports before the Court and the current risk confirmed by the fact that

Child A has met the criteria for secure care. This is a young girl in crisis, who appears to be escalating her risk profile despite on-

going efforts by her staff team, social work team and mother to re-direct her behaviour and reassure her that she can turn things

around”. The Guardian records having talked to Child A about her risk profile whereupon Child A stated that “I can’t help myself going

out, I feel guilty but I can’t stay in”. Child A also reportedly told the Guardian that “I can’t tell anybody how I really feel or I’ll end up

bring brought to A&E”. She elaborated that that “I always feel low and think of dying but if I say it they’ll take me to hospital and

that does me no good. She went on to say that she drinks to ‘block it all out’”. The Guardian recommended, in Report X, that an

expected time frame for Special Care was required and that a further strategy meeting was required to review the safety plan.

21. In Report Y, the Guardian Ad Litem reported that Child A had declined to meet with her on two occasions since her previous

report. She also noted that “since the Guardian’s first report (Report X) to this date (twelve nights) Child A has stayed a total of

seven nights in her placement. However, the nights that she has remained away have been a serious cause for concern with Child A

placing herself at high level of risk. On two occasions, Child A reported that she had been physically assaulted by a male and on one

of these occasions she alleged that a knife had been held to her throat. One night, while missing from the unit, Child A was found

unconscious. She was brought by ambulance to a hospital. Child A was excessively intoxicated on this occasion”. The Guardian re-

iterated her recommendation that an expected timeframe for Special Care was required and noted that “Child A’s case is reviewed

weekly in terms of prioritisation of the waitlist. However, the Guardian suggests that with knowledge of future/forthcoming

vacancies within each of the three special care units an approximate timeframe can be given”.

22. In 2015, the District Court Judge noted that the Respondent had assessed Child A’s needs and concluded that she required a

special care intervention and that this was still not available to her. The District Court Judge enquired as to the timetable for ACTS

intervention for Child A and asked if a date had not been set for the single session assessment. Child A requested to meet the District

Court Judge and this was facilitated. The matter was then listed for review by the District Court. The District Court reviewed Child A’s

situation for a further time.

23. On this occasion, having met Child A, the Court requested that a structured plan be put in place to sustain momentum for Child A

given that there appeared, at that point, a period of improvement for her.

24. The Applicant’s solicitor wrote to the solicitors for the Respondent referring to Child A’s case and to recent attendance at the

District Court. It was contended on behalf of the Applicant mother that in spite of Child A continuing to put herself at serious risk, and

to her having been asssessed as requiring a secure care intervention, she had not been offered a placement. The letter warned that,

in the event that the Respondent failed to address this identified need by the provision of a secure care placement for Child A, an

application to this Honourable Court would have to be made to seek appropriate relief, including, but not limited to breaches of the

Respondent’s duties to Child A as a child in their care in respect of whom certain assessments have been made. No response had

been received to this letter.

25. In the Social Worker report, it is noted that Child A’s risk taking behaviours have continued since the last court date, but states

that there has ‘a significant reduction’ in the level of these risk raking behaviours. The Social Worker noted that Child A has only been

missing in care once since the last court date. Child A had been given a curfew extension on that date. Child A did not meet that

deadline and returned to her placement in the early hours of the morning, having not maintained contact with staff during that period.

That report also outlines that Child A has engaged in self-harm and stated to staff that she ‘did not care anymore’. The report further

noted that Child A advised staff that she required the ‘morning after pill’ as she had sexual intercourse the previous day with her

boyfriend and stated that the condom has ‘split’. Although the report noted an improvement in Child A’s attendance at medical

appointments she is still not attending at CAMHS and is not taking any medication for ADHD.

26. Child A’s risk-taking behaviours re-escalate and she has been consistently missing in care and was hospitalised having consumed

an excess of tablets. Child A was missing again the following evening and consumed alcohol, tablets and cocaine and expressed that

she was seeking to take more drugs. She did not return to her unit and indicated that she had stayed with an older man in a hotel

room where she had consumed more drugs. Child A was re-admitted to hospital following this incident.

27. While interventions such as a Family Welfare Conference have been put in place it is clear that Child A requires more serious and

sustained intervention in order to keep her safe.

28. Child A has continued to be missing in care on a consistent basis and was arrested for having assaulted a nurse during a hospital

admission.

29. Child A was removed from the secure care list. However, Child A was subsequently placed back on that list, following a request

from her social worker.

30. Child A’s case was further reviewed by the District Court.

The Relevant Law

31. The recent decision of the Supreme Court in CFA v O.A. [2015] IESC 52 must be considered in the context of any application for

costs in the context of proceedings under the Child Care Act 1991. However, it is the decision of this court that in the context of

these proceedings where the Child and Family Agency, with the consent voluntary of the Applicant mother, have assumed the

statutory role of being in loco parentis with all the responsibilities that flow from such a role and the Application in these proceedings

is made by the Applicant mother on the basis that the Agency are not fulfilling their role. The decision in O.A. and the principles

outlined in same can be differentiated and are not binding on all fours on this court. I am therefore of the view that the principles

outlined in O.A. in the circumstances pertaining in that case do not need to be followed in exact terms on the particular and different

circumstances of this case.

32. It is clear from the decision that the Supreme Court is referring to Respondent parents in circumstances where the Child and

Family Agency are the Applicants for relief under the legislation. It is stated inter alia that:

"the approach to be adopted by the District Court, in dealing with statutory child care proceedings, should normally be

predicated on whether, in the first instance, it was proper to commence the proceedings by the Agency.”

33. I am of the view that the general principles outlined by the Supreme Court do not apply to the circumstances of this Case where

the Applicant mother sought to have her very serious concerns addressed by engaging solicitors to communicate on her behalf and

only after a failure as perceived by the Mother of the appropriate action did the Applicant consider it necessary to commence these

proceedings. It is noteworthy that action resulted from these proceedings. It is further noteworthy that the actions of the child in

care and the account of what occurring was of the most serious and concerning type already referred to in this decision above and I

believe and accept that it was proper reasonable and necessary for this Applicant mother to take the action that she did take and

which she felt compelled to take.

34. Even if the general principles as outlined in O.A. Supreme Court decision could be said to apply to statutory child-care

proceedings in the round including where applications are taken by parents of children in care such as occurred in the instant case. I

accept that the starting point in a costs application is to consider the application of this test within costs application. The question

arising, therefore, is whether it was “proper to commence the proceedings”.

35 It is abundantly clear to me from the chronology set out above, the Applicant consistently made efforts to seek appropriate relief

in respect of her daughter through engaging with the Child and Family Agency, both directly and via her solicitor. She eventually took

applications pursuant to section 47 and section 26 seeking certain documentation in respect of the current position pertaining to her

child’s care arrangements and how the clear risk to her child was being managed and to be managed. She also sought the

appointment of a Guardian Ad Litem for her daughter. Her daughter was being maintained in a voluntary care situation. The exact

reliefs sought in the context of the section 47 and section 26 applications were as follows:

• An order pursuant to section 47 and/or section 26 of the above-mentioned Act appointing a Guardian Ad Litem to the

said minor, Child A.

• Further, a direction that an up to date care plan be prepared for the said minor and provided to the Court and to the

Applicant herein.

• Further, a direction that a Risk Assessment in respect of the said minor be prepared and provided to the Court and to

the Applicant herein.

36. These interventions, particularly the provision of an up to date care plan (which is a statutory duty falling on the Respondents)

and a Risk Assessment were, in the context of this care, essential in terms of ensuring that attempts were made to improve the care

Child A was receiving and to address the serious risk to her life, health and well being.

37. The Supreme Court in O.A Decision considered it more useful to consider ‘outcome’ than the concept of ‘costs following the

event’. At paragraph 39 of the decision, the Supreme Court Judge pauses to “observe that the use of the term ’the event’ as in ’costs

follow the event’ is not always, in itself a satisfactory criterion, in the context of child care proceedings, where there may be a

number of ‘events’, and there are different orders made as part of a continuum. The term ‘outcome’ may be a more apposite approach

when considering such applications, thereby allowing a judge to take a more all encompassing view.”

38. The outcome of the applications at issue here – and they all flow from the sections 47 and section 26 applications – were the

provision on the morning of the hearing of the applications of a number of documents including a Risk Assessment. On a further return

date a Guardian Ad Litem was appointed to the child, the subject of the application, and a number of other ‘outcomes’ can be said to

have been aided by the District Court proceedings including the Court hearing Child A’s voice (via the Guardian Ad Litem and meeting

directly with the Judge) and directions and observations in terms of short term measures to attempt to address the risks to Child A.

39. Paragraph 50 of the Supreme Court decision goes on to say that at (iv) that:

“in any case in which a District Court seeks to depart from the general default position and award costs, it is necessary

to give reasons. These reasons must identify some feature or issue in the case which rendered truly exceptional. It is

true all cases are distinct, but not all cases are exceptional. The reason for the distinction rendering a costs order

justified must go to whether or not there were some unusual or unprecedented issue or issues which required

determination or whether the case properly, and within jurisdiction, determined a point that had application a range of

other cases".

40. I accept the submission on behalf of the Applicant mother that this paragraph refers to the situation arising where a respondent

parent seeks their costs in the context of child-care proceedings and not where an Applicant parent as in this particular case seeks

their costs in an Application of the type made in these proceedings.

41. In light of the foregoing, it is clear that the institution of the District Court proceedings were necessary at the time that they

were instituted in 2015 and that the ‘outcome’ of those proceedings furthered Child A’s welfare and best interests.

42. In addition, it was submitted to me in the context of this application for costs that one of the arguments raised by Counsel for

the Respondents in the context of an application to the High Court was that certain reliefs fell to be obtained and could only be

obtained in the District Court and not the High Court.

43. I have noted the submissions of the Agency. I note that the Agency seek to state that issues that occurred at home prior to the

admission to voluntary care and the action/inaction of the Applicant mother may have been a factor in the distressing behaviour of

the child. None of this was substantiated by evidence. In any regard in circumstances where the Agency had taken on statutory role

on foot of the voluntary care agreement it is not nor could it be an argument for failure and/or inaction by the Agency that the child

was injured/suffered harm before the Agency assumed statutory responsibility.

44. It is noteworthy that the Agency state an up to date care plan and Risk Assessment was provided as a result of the proceedings.

This is a further valid reason that demonstrates the necessity for the Applicant mother to commence the proceedings.

45. The proceedings also resulted in the appointment of a Guardian Ad Litem to represent the wishes and welfare of the child and the

voice of the child in the proceedings. The proceedings resulted in this appointment taking place which there is no evidence would

have otherwise occurred.

46. It is noteworthy that the child was approved ultimately for secure care by the High Court in separate proceedings in that court

and the secure care was provided when the resource became available.

47. On the basis of all submissions made to the Court and the general principles applying to the decisions on costs and the discretion

to be exercised by this court within the context of costs applications generally and taking into account the general principles

application as outlined in O.A. whilst not directly on point and in the circumstances of the very stark and serious matters arising for

this young person in this case, I find that it was reasonable, correct, necessary and proper for the Applicant mother to commence,

instigate and maintain these proceedings for their duration .

48. I make an Order in favour of the Applicant mother and for costs to be taxed in default of agreement.

Marie Quirke

District Court Judge