District Court grants full care orders for two children under Section 18 of the Child Care Act 1991.

[2017] IEDC 23

AN CHUIRT DUICHE THE DISTRICT COURT

THE CHILD AND FAMILY AGENCY

APPLICANT

-AND-

N

RESPONDENT

-AND-

M

RESPONDENT

CHILD CARE ACT 1991, Section 18

IN THE MATTER OF THE CHILDREN

O AND P

[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 for a care order in respect of O, aged 16, and P, aged 10.

2. The Child and Family Agency have applied under section 18 of the Child Care Act, 1991 [hereinafter referred to as the 1991 Act]

for a full care order in respect of each of the children until their respective eighteenth birthdays.

3. Section 24 of the 1991 Act applies to this case, as does Article 42 A of the Constitution in particular with regard to the best

interests of the children being paramount in reaching of this decision.

4. N is the mother of O and P. She is represented; however, she is not present in court. I understand that she has not given any up-

to-date instruction and, therefore, I have to take it that she is not consenting to making of a care order in respect of either of the

children.

5. M is the father of O and P. He is legally represented and is present in court. He has confirmed that he is consenting to the making

of a care order in respect of each of the children.

6. The Guardian Ad Litem was appointed on, is present at the hearing and is legally represented.

7. The Child and Family Agency is also represented throughout the application.

8. The children reside in Dublin Metropolitan District and, therefore, I am satisfied that the Dublin Metropolitan District Court has

jurisdiction to hear this application.

9. I am satisfied that both parents have been served with the notice of application for a care order.

Background

10. Both children have been in voluntary care since 2010. The children were in “voluntary care” from mid-2010. In early November

2010 a supervision order was made, however, in mid-November 2010, the children came back into “voluntary care” and have remained

in the care of the Child and Family Agency since that date.

11. “Voluntary care” is a term commonly used for care under section 4 of the 1991 Act, which provides that where it appears to the

Child and Family Agency that a child requires care or protection that he/she is unlikely to receive unless taken into care, the duty of

the Agency is to take that child into their care under the section. It is pursuant to that section, and presumably for those reasons,

that the children were in “voluntary care” for this lengthy period.

When the children came into care, both were ultimately placed with the same carer. While P remains in that placement, O has moved.

12. In mid-2016, the mother indicated that she wished to bring the “voluntary care” arrangement to an end. An application under

section 17 of the 1991 Act was issued and was dealt with by the Court in September 2016. Each of the children has remained in the

care of the Child and Family Agency under section 17 of the 1991 Act since that date.

Evidence

13. In respect of the section 18 hearing, I have heard evidence from the allocated social worker. I also heard evidence from Dr. H, Dr.

Q and the Guardian Ad Litem. The parents have not given evidence.

14. On the basis of the uncontroverted evidence, I am satisfied that the mother’s parenting and involvement with her children is

inconsistent and is largely dependent on her own wellbeing. She has been unable to demonstrate any consistency in terms of caring

for the children and attendance at access. She has continued to lead a chaotic lifestyle since the children’s reception into care under

“voluntary care” in 2010 and throughout that period. It appears that the mother turns to drugs and she cannot cope with the reality

of her situation as a result of being a chaotic drug user over a long period of time. However, within that, and it was clear from Dr. Q’s

evidence, that the level of chaos varies and she does have significant periods of stabilisation within that. From the evidence, it is

clear that the mother has a pattern of committing to agreements in terms of working with the Child and Family Agency regarding the

care of children. However, unfortunately she is unable to see this commitment through. The mother has, at times, been unable to put

O’s needs before her own, continuing to have contact with O without the knowledge of the Child and Family Agency. However, the

evidence also establishes that, at times, she appears to have some insight into the difficulties that may arise from unscheduled

contact.

15. After saying all of that, there has to be some credit given to the mother and due to her for recognising the issues to such an

extent as to be willing, over a considerable period of time, to place the children into “voluntary care” which would appear to be in

their best interests.

16. With regards to the father, again the evidence is uncontroverted. I am satisfied that the evidence establishes that due to his

mental health difficulties and addiction issues that the father has had inconsistent access with his children, because it is not in the

children’s best interests to see their father due to his presentation. There is credit due to the father for having the insight in relation

to not exercising access for those reasons, and the fact that he realises that when he is not well, it is inappropriate for him to see his

children. The evidence establishes that he is currently stable in terms of his mental health. The evidence also establishes that since

the summer of 2016, the father has begun to have access with O and P over the school holiday which has been appropriate and

beneficial for the children. Finally, the father has been clear with the Child and Family Agency that while he loves his children deeply

he is not in a position to care for them. Ultimately, he wants his children to be happy and he has indicated that he supports the

children’s current care arrangements and has indicated his consent to the making of a care order.

17. With regards to the evidence of the Guardian Ad Litem, he has not taken any issues in relation to the evidence of the Child and

Family Agency in respect of the parents. The Guardian Ad Litem has set out the views and wishes of the children. It is clear that O

understands the care situation and understands that there is an application for a full care order. O is satisfied that a care order would

be made. O has expressed a wish to go to the new foster placement which hopefully now will be available to O within the next couple

of weeks. With regards to P, while P is somewhat younger, I am satisfied on the basis of the evidence given by the Guardian Ad Litem

that P has an appropriate understanding of the care situation and the application for a care order. P has expressed the view that P

wishes to remain in the current placement, at least until the age of eighteen and indicated a desire to stay beyond that time period.

The Guardian Ad Litem stated that he supports the application for the making of a care order in respect of each of the children until

they are 18 years of age and that such an order is in the best interest of each of the children.

Decision

18. I am satisfied on the basis of the evidence that the circumstances outlined in section 18 (1) (b) and (c) applies to each of the

children; that their health, development and welfare has been adversely affected and that their health, development and welfare is

likely to be adversely affected if they were returned to the care of either parent. In respect of risk into their future, it is likely that

the children’s health, development and welfare would be affected if they were to be returned to the care of their father in

circumstances where he has stated that he is not in a position to care for them. In respect of the mother, the children’s health,

development and welfare is likely to be affected in the context that while the mother in the past has committed to agreements in

terms of working with the Child and Family Agency she has been unable to follow through and has been inconsistent with providing

safe care for them.

19. I am satisfied, therefore, that it is appropriate to make a care order under section 18 of the 1991 Act in respect of each of the

children. I have considered the possibility of making no order and under the circumstances I am not of the view that making no order

would protect the health, development and welfare of the children. I have considered the possibility of making a supervision order

under section 18 (5) of the Child Care Act 1991, and again I am satisfied, particularly where the children have been through the

making of a supervision order, that it would not be sufficient in terms of protecting the health, development and welfare of the

children. I have also considered the possibility of making a shorter order, other than until each of the children reaches the age of 18

years. However, considering the father has indicated that he is not in a position to care for the children and in respect of the mother

there has been no evidence over a long period of time of any change in her circumstances, including in circumstances where the Child

and Family Agency has considered to possibility of conducting a parenting capacity assessment but the mother has been unable to

cooperate to such an extent that this assessment could even be commenced, in all of those circumstances, I am satisfied that it is

proportionate to make an order in respect of each of the children until their respective 18th birthdays.

20. With regards to placement, P has been in her current placement for a considerable period of time and wishes to remain in that

placement. Given the circumstances to which O’s placement there broke down, it is appropriate that there would be some supports

for that placement to deal with the transition of P into adolescence and the difficulties that this might bring for the carer. I note that

such support has already commenced.

21. With respect to O, O has had a number of changes in placement and is currently in a residential placement. However, there is an

active plan that O will move to a new foster care placement within approximately 2 weeks and that placement is with relatives of

people that have previously cared for O and it is somewhere O is familiar with. This presents a great opportunity and something which

O wishes to succeed. In that context, it should be supported as far is possible and necessary.

22. With regards to access, the father currently has access which is regarded by everyone as positive and is encouraged to continue.

There is no necessity to make an order in respect of that. With regards to the mother, everyone is of the view that access should

occur in a regular manner. It is unfortunate that the mother is not taking up access at the moment, but the occurrence of access

continues to be supported and it seems to me that it is appropriate that this access continues to be on offer in accordance with

section 37 of the 1991 Act.

23. With regard to sibling access, I am noting that sibling access should occur at least weekly, that at present it occurs in a natural

way but it is a matter that should be included in each of the children’s care plans and should be included in child in care reviews.

24. I note the Guardian Ad Litem approves the care plans.

25. There was an issue that arose in relation to some property of the children. The Child and Family Agency will have to look at what

section 18 (3) of the 1991 Act actually means as to it having like control over the children as if they were the parents. The question

arises as to what property interests the children may have but these are matters that the Child and Family Agency can only consider

by virtue of section 18 of the 1991 Act; they should now be considered as a matter of urgency.

26. I make a care order under section 18 (1) (b) and (c) of the 1991 Act in respect of O to O’s eighteenth birthday. I make a care

order under section 18 (1) (b) and (c) of the 1991 Act in respect of P to P’s eighteenth birthday.

27. In respect of O and P, the After Care Review will take place in accordance with the Guardian Ad Litem’s recommendation, at 17

years of age.

28. In respect of each of the children their placement should be long term matched within 6 months, with a “default” re-entry if the

placement has not been long term matched by then.

29. The case is to be re-entered before the Court on notice to the Guardian Ad Litem, in advance of the date of re-entry, in the

following events;

a.the case becomes unallocated to a social worker or a fostering link worker for a period of six weeks;

b.if there is no social worker visit for each of the children for a period of six months;

c.the statutory planning meetings and the child in care reviews do not take place within the statutory period;

d.if there is a placement change other than the currently proposed change for O.

30. If the current Guardian Ad Litem is not available at re-entry, then an application should be made by the Child and family Agency

to appoint an alternative Guardian Ad Litem.

31. I discharge the Guardian Ad Litem under section 26, subject to the various directions made.

Brendan Toale

District Court Judge

February 2017.