District Court refuses interim care order for child, finding current private care adequate despite parental separation risks.

[2017] IEDC 20

AN CHUIRT DUICHE THE DISTRICT COURT DUBLIN METROPOLITAN DISTRICT

CHILD AND FAMILY AGENCY

APPLICANT

-AND-

H

RESPONDENT MOTHER

D

RESPONDENT FATHER

IN THE MATTER OF Z (a child)

guardian ad litem: JC

[Note: This version of the original decision delivered is prepared for the purpose of publication. Any changes from to the

original are intended only to be as to form and not as to substance, and are for the purpose of reducing the possibility of

identification of the children.]

1. This is an application by the Child and Family Agency pursuant to section 17(1) of the Child Care Act 1991 (The 1991 Act) for an

initial interim care order in respect of Z, a child of around 10 years.

2. An application under section 18 of the 1991 Act, for a "full" care order has also been issued and served, but that application has

not yet been opened to the court. This is in accordance with the usual practice in this court, where interim care order applications

under section 17(1) of the 1991 Act are generally heard on or shortly after the initial date for which they are issued, while care order

applications under section 18 of the 1991 Act are generally heard some time after the initial date for which they are issued, on fixed

hearing dates.

3. The current application for an interim care order was issued on 4th January 2017, returnable for hearing on 10th January 2017. The

application was adjourned on a number of occasions, and ultimately came on for hearing on 6th March 2017. The hearing continued on

7th March 2017, 8th March 2017 and 15th March 2017, as the court schedule allowed. I reserved my decision to today.

4. The guardian ad litem for Z was appointed on 3rd February 2017. She was present and represented by her solicitor throughout the

hearing.

5. The parents were both present, and were separately represented by their respective solicitors throughout the hearing.

6. The Child and Family Agency has been represented throughout the proceedings by its solicitor.

7. The following witnesses gave evidence;

For the Child and Family Agency,

S, psychologist, who swore to the truth of the report submitted dated 25th July 2016;

F, allocated social worker, who swore to the truth of the reports submitted dated 11th January 2017 and 6th March 2017;

K, social work team leader:

For the respondents:

father,

mother,

X, Z's sibling,

L, X's spouse.

The guardian ad litem also gave evidence, and swore to the truth of the report submitted undated, marked "for hearing ...on 6th

March 2017".

8. Section 17(1) of the 1991 Act provides as follows:-

17.—(1) Where a justice of the District Court is satisfied on the application of the Child and Family Agency that—

(a) an application for a care order in respect of the child has been or is about to be made (whether or not an

emergency care order is in force), and

(b) 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 determination of the application for the

care order, the justice may make an order to be known and in this Act referred to as an “interim care order”.

9. At the commencement of the proceedings, each of the parents conceded that in respect of their care of Z, "there is reasonable

cause to believe that any of the circumstances mentioned at paragraph (a), (b) or (c) of section 18(1) [of the 1991 Act ] exists or

has existed" with respect to Z. However the parents do not accept "that it is necessary for the protection of the Z’s health or

welfare that Z be placed or maintained in the care of the Child and Family Agency pending the determination of the application for

the care order", in circumstances where Z has not been in the parents' care for upwards of 30 months, and is in their view being

adequately cared for by sibling X in a "private arrangement".

10. In this context, a "private arrangement" is an arrangement made outside the statutory structure of agreements or orders under

the 1991 Act. A child who is the subject of a "private arrangement" is not in the care of the Child and Family Agency, in contrast to a

child who is subject of a "voluntary care" agreement under section 4 of the 1991 Act, or subject to orders under sections 13, 17 or 18

of the 1991 Act. Private arrangements within families, within the statutory degree of relationship, do not require to be notified to or

registered with the Child and Family Agency - all of the private arrangements in respect of Z have been such that notification to or

registration with the Child and Family Agency is not required (although in this case the Child and Family Agency has been aware of the

arrangements) . In a private arrangement, the legal position is that access is a matter for the parents, and no one has authority to

limit or deny access to the parents, regardless of the opinion of the Child and Family Agency as to its occurrence.

11. Z is around 10 years old. Z was in the parents' care from birth to June 2008, and again from April 2010 to July 2014. Z was in

foster care from June 2008 to April 2010, and since July 2014 has been in the care of Z’s adult sibling C up to mid-January 2017, and

of Z’s adult sibling X from mid-January 2017 to date.

12. In the report dated 11.01.17, F, the allocated social worker, sets out in considerable detail what F states is "a long and

significant history of social work involvement with the family spanning across [a number of] social work departments...". The

guardian ad litem at paragraph 2.0 of her report, sets out a "Chronology of significant events". Inter alia, the following matters are

set out in those reports:

• Z was born in July 2007. Following Z's birth, father was named as primary carer.

• In June 2008, Z was received into the care of the Health Service Executive, following the exercise by the gardai of their

powers under s12 of the 1991 Act. Z was "placed in foster care" from June 2008 to April 2010, a period of 22 months. It

is not clear to me whether this placing in foster care was by private arrangement, voluntary care or court order.

• The guardian ad litem reports that a clinical psychologist reported in 2007/8 that father "did not have capacity to care

for Z".

• In 2009, Z underwent an assessment of need, and was determined to have an overall developmental delay spanning all

aspects assessed - possibly due to lack of stimulation.

• In April 2010, Z was returned to the care of the parents - around this time they had commenced participation in some

support programmes, which were not ultimately completed.

• Further "referrals" were received in 2010. The Social Work area that received those referrals, [ the First Social Work

Area] closed the case in 2011, it appears the family was by then residing in another social work area [the Second Social

Work Area ].

• A number of "referrals" were made to the Second Social Work Area in 2013. It is reported that an "initial assessment"

was carried out in April 2013, which recommended monitoring of the case. It is reported that a second "initial assessment"

was commenced following a further referral in October 2013. It is not reported when the second initial assessment was

commenced, but it is reported that a risk to Z was identified by virtue of the identity of a person sharing accommodation

with the parents. It is reported that "therefore in July 2014, father decided to place Z with [sibling C]."

• Shortly after Z was placed with sibling C, by private arrangement, the case was closed by the Second Social Work Area.

• The case was reopened by the First Social Work Area in 2015 (it appears 12 - 18 months had elapsed since the case

had been closed in the Second Social Work Area). A number of child protection case conferences have been held since. It

appears that each such conference recommended that Z not be returned to the parents’ care. It is reported in the social

work report that child protection conferences in November 2015, May 2016 and December 2016 recommended that

application be made for an interim care order. The child protection conference in November 2015 reportedly concluded

that Z "should be received into the care of the Child and Family Agency whether by voluntary consent or by way of

court order obtained through the District Court". The child protection conferences in May and December 2016 reportedly

recommended that the Child and Family Agency "seek an interim care order to formalise Z's care arrangements".

• An application was issued for an interim care order, for hearing on 15.02.16. That application was withdrawn by the

Child and Family Agency, the court noting that a private arrangement had been agreed. No other application was made

until the present application was issued.

• From July 2014 until November 2015, Z resided with sibling C in C's family home, with C's mother and some of C's

siblings. The child protection conference in November 2015 was informed of certain allegations or issues concerning one of

C's full siblings. Shortly thereafter, Z and C left that accommodation, and after a short period staying with another

relative, Z and C accessed "homeless" accommodation [i.e bed and breakfast] for 8 months before being provided with

local authority accommodation. It was acknowledged in the evidence that C moved accommodation with Z because of the

concerns expressed by the First Social Work Area, and that C acted appropriately in doing so.

• In December 2016, C became ill, and was subsequently admitted, discharged and readmitted to hospital. After a period

of considerable uncertainty [referred to in more detail below], Z was placed in the care of X, on or about 11th January

2017, and has remained in the care of X to date.

13. S, a psychologist, gave evidence. S carried out a parenting capacity assessment of both parents, as set out in detail in the

report and in evidence. The methodology of the assessment, and the process of interviewing and testing are set out in the report.

The conclusion, and the basis for the conclusion is set out in the report and in the evidence. The conclusion is that "the joint

parenting assessment indicated that while mother and father undoubtedly love … Z, they are not in the position to provide Z with

the structure, nurture and care required for Z to have a safe and secure environment where Z’s needs are met on a consistent

basis"

14. F, allocated social worker gave evidence that father has a history of alcohol abuse. F acknowledged that father denies currently

drinking, although he gave no evidence in this regard. F gave evidence that mother has a diagnosed intellectual disability, and is very

vulnerable. F’s social work assessment is that return to the parents care would expose Z to risk of neglect arising from fathers alcohol

abuse and failure to deal with his addiction, and from mothers (parenting) inability due to her disability and vulnerability and lack of

support.

15. On the basis of the evidence of S and of F and noting the concession by the parents at the commencement of the proceedings

(paragraph 9 above) I am satisfied on the balance of probabilities 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" i.e that Z has been neglected while in

the care of the parents, and that Z’s health, development or welfare is likely to be avoidably impaired or neglected, if returned to the

care of the parents.

16. Is it " necessary for the protection of the child’s health or welfare …to be placed or maintained in the care of the Agency

pending the determination of the application for the care order"? The parents submit that it is not necessary, that no order should

be made, and that Z should remain in the care of X. The Child and Family Agency submits that it is necessary, and confirms that if an

order is made, Z will be immediately removed from the care of X and placed in "general foster care". The guardian ad litem submits

that it is necessary, but that Z should remain in the care of one or other of Z’s the siblings under an interim care order [the guardian

ad litem 's first preference is placement with C first, her second preference is placement with X].

17. Throughout the period of Z being placed with C and X, Z’s parents have retained exclusive parental responsibility for Z, with all of

the rights and duties that such responsibility entails. Z has been in the care of C and X because the parents have placed Z there and

have permitted Z to remain there. As far as I am aware on the evidence, the Child and Family Agency, C and / or X have not applied

for or been granted any orders regarding custody or guardianship of Z, or otherwise. If Z required medical treatment, the parents'

consent would be required. If Z required a passport, the parents would have to consent to its issue. The parents have at all relevant

times been entitled to terminate the existing private arrangement without reference to anyone, in particular without reference to the

Child and Family Agency. Regardless of the length of time the child has been in the private arrangement, such termination can be

instant and final, no notice whatsoever is required, nothing of the nature of estoppel arises.

18. In circumstances where it has been the view of the Child and Family Agency since the latter part of 2014 (at least) that Z should

not return to the care of the parents, and where the Child and Family Agency have had the benefit of the parenting capacity

assessment dated July 2016, and where the Child and Family Agency has had extensive social work involvement with Z including

continuous social work involvement with Z from November 2015 to date, Z's care arrangement has been unstable. Z has been in a

private arrangement determinable at a moment's notice, but the termination of which would (or at any rate could), based on the

conclusions of the Child Protection Conferences, trigger an immediate interim or possibly emergency care order application. The

guardian ad litem summarises Z's care arrangements as follows: "Z...has experienced four changes of primary care giver and five

episodes of care arrangement, Z has resided in at least seven different addresses and homeless accommodation. Z has attended six

different schools."

19. To date, the parents have not terminated the private arrangement. On the evidence, they have on occasion indicted an intention

to do so, and they have indicated in particular an intention to do so in January 2017 if Z remained in the care of C, they having

become dissatisfied with the care provided by C. They have also on the evidence spoken to Z during access about returning to their

care, which I am satisfied must have contributed to insecurity on Z's part.

20. The social worker states that "the parents have decided not to sign voluntary consent". This is referred to in the section of the

report referring to the child protection conference in November 2015. I am satisfied that this is a reference to what is known as

"voluntary care" pursuant to section 4 of the 1991 Act, which provides:.....

4.—(1) Where it appears to the Child and Family Agency that a child

requires care or protection that he is unlikely to receive unless he is taken into its care, it shall be the duty of the

Agency to take him into its care under this section.

(2) Without prejudice to the provisions of Parts III, IV and VI, nothing in this section shall authorise the Child and Family

Agency to take a child into its care against the wishes of a parent having custody of him or of any person acting in loco

parentis or to maintain him in its care under this section if that parent or any such person wishes to resume care of

him.

(3) Where the Child and Family Agency has taken a child into its care

under this section, it shall be the duty of the Agency—

(a) subject to the provisions of this section, to maintain the child in its care so

long as his welfare appears to the Agency to require it and while

he remains a child, and

(b) to have regard to the wishes of a parent having custody of him or of any person acting in loco parentis in the

provision of such care.

If there had been at any time a "voluntary care" agreement, it would have suffered from the same inherent instabilities as the private

arrangement, from the point of view of termination without notice by the parents. There would have however been at least three

major differences between a private arrangement and a voluntary care arrangement, namely that placement under voluntary care

would be subject to the fostering / placement regulations (which require care planning, child in care reviews, payment of fostering

allowance etc), a child in voluntary care is subject to s37 of the 1991 Act in respect of access with parents, and a child in voluntary

care is subject to and has the benefit of s47 of the 1991 Act.

21. The facts of this case are unusual in this context: in general, in an application for an interim care order, the children would usually

be in the care of the parent(s), or already in the care of an approved carer or a person who the Child and Family Agency are

considering for approval. In this case, the child, having left the care of the parents some 30 months ago, has remained in private

arrangements with family members during that time, and the Child and Family Agency has abided by those arrangements, albeit that it

gave advice, and indeed it seems what the Child and Family Agency appears to consider to have been mandatory instruction and

direction, in the context of those private arrangements. Despite having on 3 previous occasions decided that an interim care order

should be applied for, the Child and Family Agency did not press any such application. Nevertheless the Child and Family Agency have

not at any time approved of the persons with whom the child was placed.

22. Against this background, including both the legal uncertainty and practical uncertainty as to whether the parents would terminate

the private arrangement at any time, Z's siblings have endeavoured to do that which the Child and Family Agency has not to date

attempted to do, that is to "supply the place of the parents". This task has fallen mostly to C. After C first took up this task, the

Child and Family Agency closed the case, and there was no social work involvement for over a year. When the Child and Family

Agency became involved again, and particularly after the child protection conference in November 2015, C received and generally

followed advice / demands of the Child and Family Agency including moving out of C’s own mother's home and into homeless

accommodation in order to remain as Z's carer. C received very regular social work visits, but little in the way of practical or financial

support. When questioned about supports provided, the Child and Family Agency submitted that C had the support of a key worker.

That is correct, however it appears that key worker was not supplied by the Child and Family Agency and the key worker's task was

to assist with accommodation issues. There was also support in the context of access supervision being provided from April 2016.

Whatever C may have received in advices, C received no practical parenting support, in circumstances where, without any parenting

experience, C undertook the care of a child of around 7, who had been subject to neglect. There has been no recent psychological

assessment of Z, and no formal guidance available from such an assessment to Z’s carers, in respect of any issues that might arise

from neglect, or otherwise. It appears that in 2009, there was an assessment of global delay possibly due to lack of stimulation, but

there is no evidence that C was either informed of this or even if C was informed, of C being offered any advice or assistance in

dealing with this. Art therapy has been commenced in Z's school

23. As noted earlier, in December 2016, C became ill, and was subsequently admitted, discharged and readmitted to hospital. No

evidence has been given about the nature of this illness but clearly it was serious. The evidence is that C did not keep the Child and

Family Agency informed of her hospital admissions and of the arrangements made by C for Z's care during hospitalisation. This includes

not informing the Child and Family Agency of her original admission to hospital, and also not informing the Child and Family Agency

that Z had been cared for by a grandparent, and had been collected from school by a relative specifically not approved by the Child

and Family Agency to do so. On occasion, C and the grandparent gave conflicting accounts to the Child and Family Agency, as a

result the Child and Family Agency did not know where Z was for a period of time (although it is clear from the oral evidence that Z

was being cared for during this period, and was not “missing”). The period from Cs initial admission in December 2016 to mid January

2017 is described in the social work report of 6th March 2017 in detail at paragraph 3.2.1.

24. At paragraph 3.3.2.3 of her report dated 11th January 2017, F summarises "strengths and concerns" in respect of C's care of Z.

Similar issues are further dealt with at paragraph 3.2.1 of the report dated 6th March 2017, with considerably more detail of the

concerns raised. In the social work report of 11th January 2017, at 3.3.2.3., it is stated that "some of C's choices jeopardise Z's

placement with C". In the social work report of 6th March 2017, at 2.5, it is stated that " C has made significant personal sacrifices

for Z and there is a strong bond between them, however, C has placed Z at risk of harm on numerous occasions and did not

prioritise Z over her own needs". At the hearing, the Child and Family Agency stated that it is not recommending that C be assessed

as relative foster carer. In any event, C has not to date furnished a completed application for such assessment. The Child and Family

Agency is not recommending C as long term carer for Z.

25. At 3.2.1 of the report of Ms F 6th March 2017, it is stated that "X was considered as a relative foster carer on the 14th of

December 2016 and the preliminary checks were carried out with consent with an Garda Siochana and the corresponding social work

departments in [The Third Social Work Area]; following this a decision was made by the Social Work Department that due to

concerns raised we would not recommend X as a relative foster carer.". Nevertheless, as stated later in that paragraph, " On the

1st of January 2017 C was re-admitted to hospital with health concerns. I was notified of this on the 5th of January by another

professional. Z was supposedly staying in X's house during the interim. On the 5th of January, following a consultation with a team

leader and with father it was agreed it would be in Z’s best interest for Z to remain in X’s care until court on the 10th of January

[2017]. This was due to C's fluctuating health condition. This option was the least disruptive for Z as a short term solution rather

than the instability seeking an Emergency Care Order would have on Z, instead of a planned move for Z." Later in the same

paragraph, it is stated at some date between 10th and 24th January 2017 " the decision was made for Z to remain in X's due to the

lack of honesty [apparently of C] with the social work department until court proceeding on the 24th of January where a formalised

plan regarding Z’s care could be made."

26. On 24th January 2017, the case was adjourned, on consent, to 3rd February 2017.

27. On 3rd February 2017, the parents applied to have a guardian ad litem appointed by the court under s26 of the 1991 Act, and to

have the case adjourned until the guardian ad litem could report to the court on Z's views and best interests. The Child and Family

Agency opposed that application, and after submissions from all of the lawyers then involved, I declined the adjournment application.

Later on that day, the issue was reopened by the parents and further submissions made, and I again declined the application. Shortly

after I had declined the adjournment application for the second time, the Child and Family Agency then consented to the

adjournment. The case was adjourned to the 6th March 2017 and the guardian ad litem was appointed.

28. Z has remained in the care of X from mid-January to date.

29. The guardian ad litem has furnished her report dated 6th March 2017, and gave oral evidence. The guardian ad litem is of the

view that the threshold for an interim care order exists in respect of Z, in that "There is a history of documented concerns in relation

to the care provided to Z by the parents and two parenting capacity assessment dated 2007/8 and 2016, the latter of which

concludes; “they ( parents) are not in a position to provide (Z) with the structure, nurture and care required for Z to have a safe

and secure environment where Z’s needs are met on a consistent basis”. This accords with what I have found at paragraph 15

above.

30. At 9.6 of her report, the guardian ad litem states "The Guardian respectfully considers that the concerns before the Court satisfy

the threshold for an Interim Care Order, under Section 17 of the Child Care Act 1991. Any action proposed must be proportionate to

the nature and gravity of the risk of harm that Z is exposed to. The central issue is whether Z can continue to be cared for within

Z’s family." [emphasis added]

31. The guardian ad litem clearly expressed a preference that Z would be placed with C, under an interim care order, pending a

fostering assessment of C. The court pressed the guardian ad litem for her opinion on the various orders that might be open to the

court, including making no order. It is the guardian ad litem 's view that Z's best interests are served by Z remaining placed within Z’s

family, if not with C then with X, and that Z's best interests would be better served by no interim care order being made pending the

hearing of an application under section 18 of the 1991 Act for a "full" care order, rather than an interim care order resulting in Z being

removed from the care of the family, including the care of X, and Z being placed in general foster care.

32. X gave evidence that X had applied to the Child and Family Agency to be considered as a relative carer. By letter dated 27.01.17,

he was informed that following "preliminary screening" the social work department would not put X forward for a relative fostering

assessment, due to criminal background, child welfare concerns, and chaotic relationship with Z's father. At the date of hearing X had

not appealed this decision in respect of this application to be assessed, X indicated in court that it is now X’s intention to do so. X

appeared in this case as a witness, without legal advice. X said X had not appealed because F, the social worker had said F was not

supporting the application, and X felt that it therefore had no chance of success. The letter advising X of the decision, and in

particular its reference to submitting a "complaint" is not particularly clear about appeal rights.

33. It appears from the evidence that X has some criminal convictions between 2001 and 2012. Half of the convictions were recorded

in 2005 for unspecified road traffic offences, apparently all arising from one incident. There were 5 relatively minor convictions were

for possession of drugs and public order offence, the Child and Family Agency specifically relied upon the public order offence as

grounding their assessment that X presents a risk of Z being exposed to alcohol consumption. What appear to me to be the most

concerning offences were the earliest in 2002, and the latest in 2012. The Child and Family Agency confirmed that all of the offences

were dealt with at District Court level, and none attracted custodial sentences. It appears to me that at least 8 and possibly more of

these offences (not including the most concerning ones) might be regarded as "spent convictions" under the Spent Convictions Act

2016, although they can of course still be referred to in proceedings under the 1991 Act. There appear to be no convictions for about

5 years. X did not dispute this record, when it was put X said X has matured, will not re-offend, that it is in his interest and to remain

free of further convictions.

34. In respect of child welfare concerns, firstly the evidence was that there had been social work involvement in X's family in respect

of one of X’s children where the parents were assisted in dealing with behaviours that arose in school. The evidence was that X and

X’s spouse engaged with the Child and Family Agency and accepted the advice of the Child and Family Agency, which assisted with

and resolved the problem. Secondly, as a result of an altercation between X and X’s eldest child, the gardai were called to assist -

however it appears that on investigation by the gardai and the Child and Family Agency that this was regarded as a "once off"

incident.

35. In respect of "chaotic relationship with Z's father", the evidence was that at times the relationship between X and father is

strained, that they do not talk, while at other times they maintain contact. X described the relationship with father as "up and down",

while father maintains he has a good relationship with X.

36. The Child and Family Agency and the guardian ad litem have correctly identified that there is a difficult family dynamic.

Relationships between father and C and X have at times been strained. There is apparently a difficult dynamic between mother and C.

Z has become entangled in this dynamic and is inappropriately aware from time to time of the difficulties between the family members.

In particular it appears that Z has been informed of the fact that Z’s care situation has been under consideration by the parents /

half siblings / Child and Family Agency / court, and has some knowledge of discussions around this. (This has not been confined to

family - in January 2017 an agent or employee of the Child and Family Agency discussed the possibility of foster care with Z). Given

the history of the family as discernible from the reports and evidence, it is hardly to be wondered at that there are strained

relationships. The difficult family dynamic has been known to the Child and Family Agency since at the very latest 2015, yet it

appears that no intervention was suggested or undertaken by the Child and Family Agency to attempt to address it, by way of

mediation, family therapy, family welfare conferencing or otherwise. In cross examination the social worker accepted that a family

welfare conference might have been a good idea to attempt to address this issue.

37. In the midst of all that has happened, Z is a child who has had to bear the moves from carer to carer, from address to address,

from school to school. Z brings Z’s toys to school, in case they might go missing / be stolen. Oral evidence was given that in X's

home, Z’s tablet was interfered with and a very upsetting message /password inserted on it - the implication is that this was done by

another child or children in X's house - it is not clear whether this was, or is considered by the Child and Family Agency to have been,

a childish prank or something more malicious. Nevertheless, it is common case that Z has stated to the guardian ad litem and to the

social worker that Z is happy in X's care. On the evidence, X has the ability to provide basic day to day care, including

accommodation, for Z. While in X’s care Z has continued to attend school, which is a considerable distance away. Evidence was given

about various parenting issues that have arisen, on balance I am satisfied that X has dealt appropriately with any incidents arising. By

way of example, it has been recommended that Z attend after school activity, which Z was not consistently doing until the matter

was discussed with X at a recent parent teacher meeting - thereafter, Z has generally attended.

38. Included in the guardian ad litem 's assessment at part 9.0 of her report are the following;-

• Despite [Z’s care history] there is no evidence of long term planning for Z, to ensure stability and consistency of care.

...

• From July 2014 until January 2017 Z resided with half-sister, C under private arrangement and the stability of this

placement has continually been undermined by very complex family dynamics and dysfunction. There have been a

number of concerns expressed about the standard of care provided by C, but there has been no formal assessment of

supports needed to maintain the placement. This was a recommendation in the Parenting Capacity Assessment of 2016.

C has relied on an informal support structure which has been considered inadequate and risky by the social work

department.

• There is no clear sense of Z’s emotional and therapeutic needs, given the level of disruption and trauma experienced.

Z requires a Clinical Psychological Assessment ...

• There is a logistical and practical difficulty with this case being managed in [Social work area 1] and Z being resident in

Dublin for the past two and a half years. F, Social Worker, has not been able to access supports in the child’s

geographical area. The Guardian contacted the Child and Family Agency in [social work area 3] who outlined that there is

no specific transfer policy and the decision is made between one Principal Social Worker and the other.

As regards these issues, I refer also to paragraph 2.2 of the social worker's report 11.01.17 where it is reported that "the case was

not, as per protocol, formally transferred to social work area 3 or Social work area 1 and for approximately 18 months, there was

no social work involvement." [I understand this to mean that there was a breach of protocol, that the protocol required that the

case should be transferred to social work area 1 (where the parents lived at the date of birth of the child until the move to social

work area 2 and to where they have since returned to live) or to social work area 3 (where the child had moved to reside with C)].

I also refer to paragraph 3.2.1.of the social work report dated 6th March 2017, referring to the period around Christmas 2016 in the

following terms "I attempted to source additional support for the family during the Christmas period; however due to jurisdictional

difficulties and a lack of resources available at the time I was unable to do so". [I understand "jurisdictional" issues to refer to "

jurisdiction" of social work departments, not courts]

• Kinship care is often complicated and evolving. The benefits of it are that children maintain a sense of belonging and

identity over their lifetime.

• The Guardian is acutely conscious of the number of moves Z has experienced and the potential impact on Z of a move

to a non-relative foster placement. Given this the Guardian would respectfully suggest that consideration be given to

placing Z with C on an emergency basis until a full fostering assessment can be completed. This would need to be

adequately supported and monitored.

• It is evident that X has supported Z over the last few weeks and Z feels happy and contained in his care. If a decision

is made that Z should remain with X, in the interim or longer term, an immediate strategy meeting would need to be

convened between social work area 1and, the Child and Family Agency[in the area where X resides] and the local Gardai

to assess any risks in relation to Z’s wellbeing. If potential risks cannot be managed then Z will need to be placed in

general foster care for overall safety and protection.

• The Guardian is aware that the Child and Family Agency have sourced a placement that will allow Z to continue in the

current school.

• Z has clearly been affected by negative family dynamics and the complicated relationships of the adults. The adults

must start to take ownership for their behaviour and the impact on Z. As part of parallel planning in this case, a Family

Welfare Conference should be held, where an independent chair can facilitate and mediate family decisions in relation to

Z. The above observations and opinions of the guardian ad litem are supported by the evidence.

39. I note the submissions by solicitor in particular on behalf of father, regarding the provisions of s8 of the Child and Family Agency

Act 2013. In light of the decision I have reached it has not been necessary for me to consider those submission further or rule on the

points raised, on this occasion.

40. I note the submissions of solicitor on behalf of the Child and Family Agency, regarding the jurisdiction of the court in the context

of s36 of the 1991 Act. In light of the decision I have reached it has not been necessary for me to consider those submission further

or rule on the points raised, on this occasion.

41. Having considered all of the evidence given and submissions made (other than those at 39 and 40 above), and the views of Z as

conveyed to the court by the guardian ad litem and indeed by the social worker, I find that Z is being adequately cared for by X, and

that although risks have been identified, there is no risk identified in the evidence arising from X's care of Z or ability to care for Z

that is of such significance as to warrant Z being removed from the care of X pending the hearing of a s18 application. Such risks as

have been identified, on the evidence, do not outweigh the risk of detrimental effect of placement outside the family. In this regard, I

prefer the evidence and opinion of the guardian ad litem (taking into consideration that in her report it is said in the context of C, but

in oral evidence she extended it in effect to both C and X), to the effect that "Kinship care is often complicated and evolving. The

benefits of it are that children maintain a sense of belonging and identity over their lifetime", rather that the evidence and opinion of

the Child and Family Agency that " For Z to be placed in foster care this would naturally have an impact on Z however, my

professional opinion is this is the best option for Z". I am satisfied on the basis of the evidence in the hearing that on balance it is in

Z's best interests to remain in the care of X pending the hearing of the s18 of the 1991 Act application.

42. Given that I have already found that Z has been neglected while in the care of the parents, and that Z’s health, development or

welfare is likely to be avoidably impaired or neglected, if Z were returned to the care of the parents, it would not be in Z’s best

interests to return to the care of the parents pending the hearing of the s18 application. There remains a risk that if Z remains the

subject of a private arrangement, such arrangement could be terminated by the parents at any time and Z might at any time be

removed from X's care by the parents. That risk is no greater now that it has been for the past 30 months, indeed it might be said to

have receded somewhat in that the parents have indicated support for Z remaining in X's care. However the difficult family dynamic

that exists does increase the risk of such termination. On balance, and it is a very fine balance, such risk of such termination of the

private arrangement by the parents, while real, does not displace the fact that Z is receiving adequate care from X at present. If the

risk were to be realised, and the parents terminated the existing private arrangement, that balance would have to be recalibrated.

43. Having considered all of the evidence given and submissions made (other than those at 39 and 40 above), and the views of Z as

conveyed to the court by the guardian ad litem and indeed by the social worker, I conclude therefore that it is not necessary for the

protection of the Z’s health or welfare that Z be placed or maintained in the care of the Agency pending the determination of the

application for the care order. I decline the application for an interim carer order for Z.

44. This decision is in respect of the s17 of the 1991 Act application only, and this decision that it is not necessary for the protection

of the Z’s health or welfare that Z be placed or maintained in the care of the Agency pending the determination of the application for

the care order is not a decision that Z does not require "care and protection which Z is unlikely to receive unless the court makes an

order under s18 of the 1991 Act (full care order)". An interim care order would not in any event "permanently remove Z from the

parents care" as envisaged in the last sentence of the "conclusion" section of the social work report dated 11th January 2017, or

provide long term stability which is also referenced by the Child and Family Agency and the guardian ad litem. It is not the purpose of

an interim care order to make permanent arrangements That will be a matter for decision on the hearing of the s18 of the 1991 Act

application.

45. I will consider fixing hearing dates for the s18 of the 1991 Act application if requested, and will hear the parties and guardian ad

litem in this regard. If no such application is made, I will adjourn the s18 1991 Act application for 4 weeks for mention.

46. I will continue the appointment of the guardian ad litem to the date of hearing of the s18 1991 Act application.

47. As Z is not in care, the court cannot make any directions regarding Z. Nevertheless the court recommends that Z continue to

receive appropriate support from the Child and Family Agency, that if the fact that the management of the case is being carried out

in social work area 1 diminishes the provision of services to Z and Z’s carers (which appears to be the case), that steps are taken to

transfer management of the case if that increases access to such services, and that the Child and Family Agency as soon as possible

complete assessment of C (if applied for) and of X (if proceeded with by appeal or otherwise).

48. I wish to point that the conclusion of this application does not mean and ought not to be taken to mean that there are no or no

legitimate concerns remaining about the various matters raised by the applicant.

Brendan Toale

Court 46

29th March 2017

[Note: forthwith upon delivery of the above decision, the application under section 18 of the the 1991 Act was withdrawn by the

Child and Family Agency]